[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2007 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
5
Part 1200 to End
Revised as of January 1, 2007
Administrative Personnel
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2007
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. vii
Title 5:
Chapter II--Merit Systems Protection Board 5
Chapter III--Office of Management and Budget 103
Chapter V--The International Organizations Employees
Loyalty Board 179
Chapter VI--Federal Retirement Thrift Investment
Board 185
Chapter VIII--Office of Special Counsel 299
Chapter IX--Appalachian Regional Commission 317
Chapter XI--Armed Forces Retirement Home 321
Chapter XIV--Federal Labor Relations Authority,
General Counsel of the Federal Labor Relations
Authority and Federal Service Impasses Panel 329
Chapter XV--Office of Administration, Executive
Office of the President 427
Chapter XVI--Office of Government Ethics 447
Chapter XXI--Department of the Treasury 665
Chapter XXII--Federal Deposit Insurance Corporation 675
Chapter XXIII--Department of Energy 585
Chapter XXIV--Federal Energy Regulatory Commission 689
[[Page iv]]
Chapter XXV--Department of the Interior 693
Chapter XXVI--Department of Defense 701
Chapter XXVIII--Department of Justice 707
Chapter XXIX--Federal Communications Commission 713
Chapter XXX--Farm Credit System Insurance
Corporation 717
Chapter XXXI--Farm Credit Administration 723
Chapter XXXIII--Overseas Private Investment
Corporation 729
Chapter XXXV--Office of Personnel Management 733
Chapter XL--Interstate Commerce Commission 737
Chapter XLI--Commodity Futures Trading Commission 741
Chapter XLII--Department of Labor 745
Chapter XLIII--National Science Foundation 751
Chapter XLV--Department of Health and Human Services 757
Chapter XLVI--Postal Rate Commission 779
Chapter XLVII--Federal Trade Commission 783
Chapter XLVIII--Nuclear Regulatory Commission 787
Chapter L--Department of Transportation 793
Chapter LII--Export-Import Bank of the United States 797
Chapter LIII--Department of Education 803
Chapter LIV--Environmental Protection Agency 807
Chapter LV--National Endowment for the Arts 813
Chapter LVI--National Endowment for the Humanities 817
Chapter LVII--General Services Administration 821
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Chapter LVIII--Board of Governors of the Federal
Reserve System 827
Chapter LIX--National Aeronautics and Space
Administration 833
Chapter LX--United States Postal Service 839
Chapter LXI--National Labor Relations Board 843
Chapter LXII--Equal Employment Opportunity
Commission 847
Chapter LXIII--Inter-American Foundation 851
Chapter LXV--Department of Housing and Urban
Development 855
Chapter LXVI--National Archives and Records
Administration 863
Chapter LXVII--Institute of Museum and Library
Services 867
Chapter LXIX--Tennessee Valley Authority 871
Chapter LXXI--Consumer Product Safety Commission 875
Chapter LXXIII--Department of Agriculture 879
Chapter LXXIV--Federal Mine Safety and Health Review
Commission 885
Chapter LXXVI--Federal Retirement Thrift Investment
Board 889
Chapter LXXVII--Office of Management and Budget 893
Chapter XCVII--Department of Homeland Security Human
Resources Management System (Department of Homeland
Security--Office of Personnel Management) 897
Chapter XCIX--Department of Defense Human Resources
Management and Labor Relations Systems (Department
of Defense--Office of Personnel Management) 951
Finding Aids:
Table of CFR Titles and Chapters........................ 1013
Alphabetical List of Agencies Appearing in the CFR...... 1031
List of CFR Sections Affected........................... 1041
[[Page vi]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 5 CFR 1200.1 refers
to title 5, part 1200,
section 1.
----------------------------
[[Page vii]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page viii]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
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[[Page ix]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2007.
[[Page xi]]
THIS TITLE
Title 5--Administrative Personnel is composed of three volumes. The
parts in these volumes are arranged in the following order: parts 1-699,
700-1199 and part 1200-end. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 2007.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Ann Worley.
[[Page 1]]
TITLE 5--ADMINISTRATIVE PERSONNEL
(This book contains part 1200 to End)
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Editorial Note: Title 5 of the United States Code was revised and
enacted into positive law by Pub. L. 89-554, Sept. 6, 1966. New
citations for obsolete references to sections of 5 U.S.C. appearing in
this volume may be found in a redesignation table under Title 5,
Government Organization and Employees, United States Code.
Part
chapter ii--Merit Systems Protection Board.................. 1200
chapter iii--Office of Management and Budget................ 1300
chapter v--The International Organizations Employees Loyalty
Board..................................................... 1501
chapter vi--Federal Retirement Thrift Investment Board...... 1600
chapter viii--Office of Special Counsel..................... 1800
chapter ix--Appalachian Regional Commission................. 1900
chapter xi--Armed Forces Retirement Home.................... 2100
chapter xiv--Federal Labor Relations Authority, General
Counsel of the Federal Labor Relations Authority and
Federal Service Impasses Panel............................ 2411
Appendix A to 5 CFR Chapter XIV--Current Addresses and Geographic
Jurisdictions.
Appendix B to 5 CFR Chapter XIV--Memorandum Describing the Authority
and Assigned Responsibilities of the General Counsel of the Federal
Labor Relations Authority.
chapter xv--Office of Administration, Executive Office of
the President............................................. 2500
chapter xvi--Office of Government Ethics.................... 2600
chapter xxi--Department of the Treasury..................... 3101
[[Page 2]]
chapter xxii--Federal Deposit Insurance Corporation......... 3201
chapter xxiii--Department of Energy......................... 3301
chapter xxiv--Federal Energy Regulatory Commission.......... 3401
chapter xxv--Department of the Interior..................... 3501
chapter xxvi--Department of Defense......................... 3601
chapter xxvii--Department of Justice........................ 3801
chapter xxix--Federal Communications Commission............. 3901
chapter xxx--Farm Credit System Insurance Corporation....... 4001
chapter xxxi--Farm Credit Administration.................... 4101
chapter xxxiii--Overseas Private Investment Corporation..... 4301
chapter xxxv--Office of Personnel Management................ 4501
chapter xl--Interstate Commerce Commission.................. 5001
chapter xli--Commodity Futures Trading Commission........... 5101
chapter xlii--Department of Labor........................... 5201
chapter xliii--National Science Foundation.................. 5301
chapter xlv--Department of Health and Human Services........ 5501
chapter xlvi--Postal Rate Commission........................ 5601
chapter xlvii--Federal Trade Commission..................... 5701
chapter xlviii--Nuclear Regulatory Commission............... 5801
chapter l--Department of Transportation..................... 6001
chapter lii--Export-Import Bank of the United States........ 6201
chapter liii--Department of Education....................... 6301
chapter liv--Environmental Protection Agency................ 6401
chapter lv--National Endowment for the Arts................. 6501
chapter lvi--National Endowment for the Humanities.......... 6601
chapter lvii--General Services Administration............... 6701
chapter lviii--Board of Governors of the Federal Reserve
System.................................................... 6801
chapter lix--National Aeronautics and Space Administration.. 6901
chapter lx--United States Postal Service.................... 7001
chapter lxi--National Labor Relations Board................. 7101
chapter lxii--Equal Employment Opportunity Commission....... 7201
chapter lxiii--Inter-American Foundation.................... 7301
chapter lxv--Department of Housing and Urban Development.... 7501
[[Page 3]]
chapter lxvi--National Archives and Records Administration.. 7601
chapter lxvii--Institute of Museum and Library Services..... 7701
chapter lxix--Tennessee Valley Authority.................... 7901
chapter lxxi--Consumer Product Safety Commission............ 8101
chapter lxxiii--Supplemental Standards of Ethical Conduct
for Employees of the Department of Agriculture............ 8301
chapter lxxiv--Federal Mine Safety and Health Review
Commission................................................ 8401
chapter lxxvi--Federal Retirement Thrift Investment Board... 8601
chapter lxxvii--Office of Management and Budget............. 8701
chapter xcvii--Department of Homeland Security Human
Resources Management System (Department of Homeland
Security--Office of Personnel Management)................. 9701
chapter xcix--Department of Defense Human Resources
Management and Labor Relations Systems (Department of
Defense--Office of Personnel Management).................. 9901
[[Page 5]]
CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
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SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part Page
1200 Board organization.......................... 7
1201 Practices and procedures.................... 9
1202 Statutory Review Board...................... 57
1203 Procedures for review of rules and
regulations of the Office of Personnel
Management.............................. 57
1204 Availability of official information........ 61
1205 Privacy Act regulations..................... 67
1206 Open meetings............................... 71
1207 Enforcement of nondiscrimination on the
basis of disability in programs or
activities conducted by the Merit
Systems Protection Board................ 74
1208 Practices and procedures for appeals under
the Uniformed Services Employment and
Reemployment Rights Act and the Veterans
Employment Opportunities Act............ 80
1209 Practices and procedures for appeals and
stay requests of personnel actions
allegedly based on whistleblowing....... 85
1210 Debt management............................. 89
1211-1215 [Reserved]
1216 Testimony by MSPB employees relating to
official information and production of
official records in legal proceedings... 96
[[Page 7]]
SUBCHAPTER A_ORGANIZATION AND PROCEDURES
PART 1200_BOARD ORGANIZATION--Table of Contents
Subpart A_General
Sec.
1200.1 Statement of purpose.
1200.2 Board members and duties.
1200.3 How the Board members make decisions.
Subpart B_Offices of the Board
1200.10 Staff organization and functions.
Source: 56 FR 41747, Aug. 23, 1991, unless otherwise noted.
Subpart A_General
Authority: 5 U.S.C. 1201 et seq.
Sec. 1200.1 Statement of purpose.
The Merit Systems Protection Board (the Board) is an independent
Government agency that operates like a court. The Board was created to
ensure that all Federal government agencies follow Federal merit systems
practices. The Board does this by adjudicating Federal employee appeals
of agency personnel actions, and by conducting special reviews and
studies of Federal merit systems.
[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]
Sec. 1200.2 Board members and duties.
(a) The Board has three members whom the President appoints and the
Senate confirms. Members of the Board serve seven-year terms.
(b) The President appoints, with the Senate's consent, one member of
the Board to serve as Chairman and chief executive officer of the Board.
The President also appoints one member of the Board to serve as Vice
Chairman. If the office of the Chairman is vacant or the Chairman cannot
perform his or her duties, then the Vice Chairman performs the
Chairman's duties. If both the Chairman and the Vice Chairman cannot
perform their duties, then the remaining Board Member performs the
Chairman's duties.
[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]
Sec. 1200.3 How the Board members make decisions.
(a) The three Board members make decisions in all cases by majority
vote except in circumstances described in paragraphs (b) and (c) of this
section or as otherwise provided by law.
(b) When due to a vacancy, recusal or other reasons, the Board
members are unable to decide any case by majority vote, the decision,
recommendation or order under review shall be deemed the final decision
or order of the Board. The Chairman of the Board may direct the issuance
of an order consistent with this paragraph.
(c) When due to a vacancy, recusal or other reasons, the Board
members are unable to decide a matter in a case which does not involve a
decision, recommendation or order, the Chairman may direct referral of
the matter to an administrative judge or other official for final
disposition.
(d) Decisions and orders issued pursuant to paragraphs (b) and (c)
of this section shall not be precedential.
(e) This section applies only when at least two Board members are in
office.
[59 FR 39937, Aug. 5, 1994]
Subpart B_Offices of the Board
Authority: 5 U.S.C. 1204 (h) and (j).
Sec. 1200.10 Staff organization and functions.
(a) The Board's headquarters staff is organized into the following
offices and divisions:
(1) Office of Regional Operations.
(2) Office of the Administrative Law Judge.
(3) Office of Appeals Counsel.
(4) Office of the Clerk of the Board.
(5) Office of the General Counsel.
(6) Office of Policy and Evaluation.
(7) Office of Equal Employment Opportunity.
[[Page 8]]
(8) Office of Financial and Administrative Management.
(9) Office of Information Resources Management.
(b) The principal functions of the Board's headquarters offices are
as follows:
(1) Office of Regional Operations. The Director, Office of Regional
Operations, manages the adjudicatory and administrative functions of the
MSPB regional and field offices.
(2) Office of the Administrative Law Judge. The Administrative Law
Judge hears Hatch Act cases, disciplinary action complaints brought by
the Special Counsel, actions against administrative law judges, appeals
of actions taken against MSPB employees, and other cases that the Board
assigns.
(3) Office of Appeals Counsel. The Director, Office of Appeals
Counsel, prepares proposed decisions that recommend appropriate action
by the Board in petition for review cases, original jurisdiction cases,
and other cases assigned by the Board.
(4) Office of the Clerk of the Board. The Clerk of the Board enters
petitions for review and other headquarters cases onto the Board's
docket and monitors their processing. The Clerk of the Board also does
the following:
(i) Serves as the Board's public information center, including
providing information on the status of cases, distributing copies of
Board decisions and publications, and operating the Board's Library and
on-line information services;
(ii) Manages the Board's records, reports, legal research, and
correspondence control programs; and
(iii) Answers requests under the Freedom of Information and Privacy
Acts at the Board's headquarters, and answers other requests for
information except those for which the Office of the General Counsel or
the Office of Policy and Evaluation is responsible.
(5) Office of the General Counsel. The General Counsel provides
legal advice to the Board and its headquarters and regional offices;
represents the Board in court proceedings; prepares proposed decisions
for the Board in cases that the Board assigns; coordinates legislative
policy and performs legislative liaison; responds to requests for non-
case related information from the White House, Congress, and the media;
and plans and directs audits and investigations.
(6) Office of Policy and Evaluation. The Director, Policy and
Evaluation, carries out the Board's statutory responsibility to conduct
special reviews and studies of the civil service and other merit systems
in the Executive Branch, as well as oversight reviews of the significant
actions of the Office of Personnel Management. The office prepares the
Board's reports of these reviews and studies, submits them to the
President and the Congress, and makes them available to other interested
individuals and organizations. The office is responsible for
distributing the Board's reports and for responding to requests for
information or briefings concerning them.
(7) Office of Equal Employment Opportunity. The Director, Office of
Equal Employment Opportunity, manages the Board's equal employment
programs.
(8) Office of Financial and Administrative Management. The Office of
Financial and Administrative Management administers the budget,
accounting, procurement, property management, physical security, and
general services functions of the Board. It also develops and
coordinates internal management programs and projects, including review
of internal controls agencywide. It performs certain personnel
functions, including policy, training, drug testing, and the Employee
Assistance Program. It also administers the agency's cross-servicing
arrangements with the U.S. Department of Treasury's Bureau of Public
Debt for accounting services and with the U.S. Department of
Agriculture's National Finance Center for payroll and personnel action
processing services and with the U.S. Department of Agriculture's APHIS
Business Services for most human resources management services.
(9) Office of Information Resources Management. The Office of
Information Resources Management develops, implements, and maintains the
Board's automated information systems.
(c) Regional and Field Offices. The Board has regional and field
offices located throughout the country (See Appendix II to 5 CFR part
1201 for a list of
[[Page 9]]
the regional and field offices). Judges in the regional and field
offices hear and decide initial appeals and other assigned cases as
provided for in the Board's regulations.
[62 FR 49589, Sept. 23, 1997, as amended at 64 FR 15916, Apr. 2, 1999;
70 FR 30608, May 27, 2005]
PART 1201_PRACTICES AND PROCEDURES--Table of Contents
Subpart A_Jurisdiction and Definitions
Sec.
1201.1 General.
1201.2 Original jurisdiction.
1201.3 Appellate jurisdiction.
1201.4 General definitions.
Subpart B_Procedures for Appellate Cases
General
1201.11 Scope and policy.
1201.12 Revocation, amendment, or waiver of rules.
1201.13 Appeals by Board employees.
1201.14 Electronic filing procedures.
Appeal of Agency Action; Pleadings
1201.21 Notice of appeal rights.
1201.22 Filing an appeal and responses to appeals.
1201.23 Computation of time.
1201.24 Content of an appeal; right to hearing.
1201.25 Content of agency response.
1201.26 Number of pleadings, service, and response.
1201.27 Class appeals.
1201.28 Case suspension procedures.
Parties, Representatives, and Witnesses
1201.31 Representatives.
1201.32 Witnesses; right to representation.
1201.33 Federal witnesses.
1201.34 Intervenors and amicus curiae.
1201.35 Substituting parties.
1201.36 Consolidating and joining appeals.
1201.37 Witness fees.
Judges
1201.41 Judges.
1201.42 Disqualifying a judge.
1201.43 Sanctions.
Hearings
1201.51 Scheduling the hearing.
1201.52 Public hearings.
1201.53 Record of proceedings.
1201.55 Motions.
1201.56 Burden and degree of proof; affirmative defenses.
1201.57 Order of hearing.
1201.58 Closing the record.
Evidence
1201.61 Exclusion of evidence and testimony.
1201.62 Producing prior statements.
1201.63 Stipulations.
1201.64 Official notice.
Discovery
1201.71 Purpose of discovery.
1201.72 Explanation and scope of discovery.
1201.73 Discovery procedures.
1201.74 Orders for discovery.
1201.75 Taking depositions.
Subpoenas
1201.81 Requests for subpoenas.
1201.82 Motions to quash subpoenas.
1201.83 Serving subpoenas.
1201.84 Proof of service.
1201.85 Enforcing subpoenas.
Interlocutory Appeals
1201.91 Explanation.
1201.92 Criteria for certifying interlocutory appeals.
1201.93 Procedures.
Ex Parte Communications
1201.101 Explanation and definitions.
1201.102 Prohibition on ex parte communications.
1201.103 Placing communications in the record; sanctions.
Final Decisions
1201.111 Initial decision by judge.
1201.112 Jurisdiction of judge.
1201.113 Finality of decision.
Subpart C_Petitions for Review of Initial Decisions
1201.114 Filing petition and cross petition for review.
1201.115 Contents of petition for review.
1201.116 Appellant requests for enforcement of interim relief.
1201.117 Procedures for review or reopening.
1201.118 Board reopening of case and reconsideration of initial
decision.
1201.119 OPM petition for reconsideration.
1201.120 Judicial review.
Subpart D_Procedures for Original Jurisdiction Cases
General
1201.121 Scope of jurisdiction; application of subparts B, F, and H.
[[Page 10]]
Special Counsel Disciplinary Actions
1201.122 Filing complaint; serving documents on parties.
1201.123 Contents of complaint.
1201.124 Rights; answer to complaint.
1201.125 Administrative law judge.
1201.126 Final decisions.
1201.127 Judicial review.
Special Counsel Corrective Actions
1201.128 Filing complaint; serving documents on parties.
1201.129 Contents of complaint.
1201.130 Rights; answer to complaint.
1201.131 Judge.
1201.132 Final decisions.
1201.133 Judicial review.
Special Counsel Requests for Stays
1201.134 Deciding official; filing stay request; serving documents on
parties.
1201.135 Contents of stay request.
1201.136 Action on stay request.
Actions Against Administrative Law Judges
1201.137 Covered actions; filing complaint; serving documents on
parties.
1201.138 Contents of complaint.
1201.139 Rights; answer to complaint.
1201.140 Judge; requirement for finding of good cause.
1201.141 Judicial review.
1201.142 Actions filed by administrative law judges.
Removal From the Senior Executive Service
1201.143 Right to hearing; filing complaint; serving documents on
parties.
1201.144 Hearing procedures; referring the record.
1201.145 No appeal.
Requests for Protective Orders
1201.146 Requests for protective orders by the Special Counsel.
1201.147 Requests for protective orders by persons other than the
Special Counsel.
1201.148 Enforcement of protective orders.
Subpart E_Procedures for Cases Involving Allegations of Discrimination
1201.151 Scope and policy.
1201.152 Compliance with subpart B procedures.
1201.153 Contents of appeal.
1201.154 Time for filing appeal; closing record in cases involving
grievance decisions.
1201.155 Remand of allegations of discrimination.
1201.156 Time for processing appeals involving allegations of
discrimination.
1201.157 Notice of right to judicial review.
Review of Board Decision
1201.161 Action by the Equal Employment Opportunity Commission; judicial
review.
1201.162 Board action on the Commission decision; judicial review.
Special Panel
1201.171 Referral of case to Special Panel.
1201.172 Organization of Special Panel; designation of members.
1201.173 Practices and procedures of Special Panel.
1201.174 Enforcing the Special Panel decision.
1201.175 Judicial review of cases decided under 5 U.S.C. 7702.
Subpart F_Enforcement of Final Decisions and Orders
1201.181 Authority and explanation.
1201.182 Petition for enforcement.
1201.183 Procedures for processing petitions for enforcement.
Subpart G_Savings Provisions
1201.191 Savings provisions.
Subpart H_Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation
Expenses, Where Applicable), Consequential Damages, and Compensatory
Damages
1201.201 Statement of purpose.
1201.202 Authority for awards.
1201.203 Proceedings for attorney fees.
1201.204 Proceedings for consequential damages and compensatory damages.
1201.205 Judicial review.
Appendix I to Part 1201 [Reserved]
Appendix II to Part 1201--Appropriate Regional or Field Office for
Filing Appeals
Appendix III to Part 1201--Approved Hearing Locations by Regional Office
Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C. 1746
Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless
otherwise noted.
Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted.
Subpart A_Jurisdiction and Definitions
Sec. 1201.1 General.
The Board has two types of jurisdiction, original and appellate.
[[Page 11]]
Sec. 1201.2 Original jurisdiction.
The Board's original jurisdiction includes the following cases:
(a) Actions brought by the Special Counsel under 5 U.S.C. 1214,
1215, and 1216;
(b) Requests, by persons removed from the Senior Executive Service
for performance deficiencies, for informal hearings; and
(c) Actions taken against administrative law judges under 5 U.S.C.
7521.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997]
Sec. 1201.3 Appellate jurisdiction.
(a) Generally. The Board has jurisdiction over appeals from agency
actions when the appeals are authorized by law, rule, or regulation.
These include appeals from the following actions:
(1) Reduction in grade or removal for unacceptable performance (5
CFR part 432; 5 U.S.C. 4303(e));
(2) Removal, reduction in grade or pay, suspension for more than 14
days, or furlough for 30 days or less for cause that will promote the
efficiency of the service. (5 CFR part 752, subparts C and D; 5 U.S.C.
7511-7514);
(3) Removal, or suspension for more than 14 days, of a career
appointee in the Senior Executive Service (5 CFR part 752, subparts E
and F; 5 U.S.C. 7541-7543);
(4) Reduction-in-force action affecting a career appointee in the
Senior Executive Service (5 U.S.C. 3595);
(5) Reconsideration decision sustaining a negative determination of
competence for a general schedule employee (5 CFR 531.410; 5 U.S.C.
5335(c));
(6) Determinations affecting the rights or interests of an
individual or of the United States under the Civil Service Retirement
System or the Federal Employees' Retirement System (5 CFR parts 831,
839, 842, 844, and 846; 5 U.S.C. 8347(d)(1)-(2) and 8461 (e)(1); and 5
U.S.C. 8331 note, Federal Erroneous Retirement Coverage Corrections Act)
(7) Disqualification of an employee or applicant because of a
suitability determination (5 CFR 731.501);
(8) Termination of employment during probation or the first year of
a veterans readjustment appointment when:
(i) The employee alleges discrimination because of partisan
political reasons or marital status; or
(ii) The termination was based on conditions arising before
appointment and the employee alleges that the action is procedurally
improper (5 CFR 315.806, 38 U.S.C. 4214(b)(1)(E));
(9) Termination of appointment during a managerial or supervisory
probationary period when the employee alleges discrimination because of
partisan political affiliation or marital status (5 CFR 315.908(b));
(10) Separation, demotion, or furlough for more than 30 days, when
the action was effected because of a reduction in force (5 CFR 351.901);
(11) Furlough of a career appointee in the Senior Executive Service
(5 CFR 359.805);
(12) Failure to restore, improper restoration of, or failure to
return following a leave of absence an employee or former employee of an
agency in the executive branch (including the U.S. Postal Service and
the Postal Rate Commission) following partial or full recovery from a
compensable injury (5 CFR 353.304);
(13) Employment of another applicant when the person who wishes to
appeal to the Board is entitled to priority employment consideration
after a reduction-in-force action, or after partial or full recovery
from a compensable injury (5 CFR 302.501, 5 CFR 330.209);
(14) Failure to reinstate a former employee after service under the
Foreign Assistance Act of 1961 (5 CFR 352.508);
(15) Failure to re-employ a former employee after movement between
executive agencies during an emergency (5 CFR 352.209);
(16) Failure to re-employ a former employee after detail or transfer
to an international organization (5 CFR 352.313);
(17) Failure to re-employ a former employee after service under the
Indian Self-Determination Act (5 CFR 352.707);
(18) Failure to re-employ a former employee after service under the
Taiwan Relations Act (5 CFR 352.807);
(19) Employment practices administered by the Office of Personnel
Management to examine and evaluate the
[[Page 12]]
qualifications of applicants for appointment in the competitive service
(5 CFR 300.104); and
(20) Reduction-in-force action affecting a career or career
candidate appointee in the Foreign Service (Pub. L. 103-236, Sec.
181(a)(2), to be codified at 22 U.S.C. 4010a).
(b)(1) Appeals under the Uniformed Services Employment and
Reemployment Rights Act and the Veterans Employment Opportunities Act.
Appeals filed under the Uniformed Services Employment and Reemployment
Rights Act (Public Law 103-353), as amended, and the Veterans Employment
Opportunities Act (Public Law 105-339) are governed by part 1208 of this
title. The provisions of subparts A, B, C, and F of part 1201 apply to
appeals governed by part 1208 unless other specific provisions are made
in that part. The provisions of subpart H of this part regarding awards
of attorney fees apply to appeals governed by part 1208 of this title.
(2) Appeals involving an allegation that the action was based on
appellant's ``whistleblowing.'' Appeals of actions appealable to the
Board under any law, rule, or regulation, in which the appellant alleges
that the action was taken because of the appellant's ``whistleblowing''
[a violation of the prohibited personnel practice described in 5 U.S.C.
2302(b)(8)), are governed by part 1209 of this title. The provisions of
subparts B, C, E, F, and G of part 1201 apply to appeals and stay
requests governed by part 1209 unless other specific provisions are made
in that part. The provisions of subpart H of this part regarding awards
of attorney fees and consequential damages under 5 U.S.C. 1221(g) apply
to appeals governed by part 1209 of this chapter.
(c) Limitations on appellate jurisdiction, collective bargaining
agreements, and election of procedures:
(1) For an employee covered by a collective bargaining agreement
under 5 U.S.C. 7121, the negotiated grievance procedures contained in
the agreement are the exclusive procedures for resolving any action that
could otherwise be appealed to the Board, with the following exceptions:
(i) An appealable action involving discrimination under 5 U.S.C.
2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or
adverse action under 5 U.S.C. 7512, may be raised under the Board's
appellate procedures, or under the negotiated grievance procedures, but
not under both;
(ii) An appealable action involving a prohibited personnel practice
other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under
not more than one of the following procedures:
(A) The Board's appellate procedures;
(B) The negotiated grievance procedures; or
(C) The procedures for seeking corrective action from the Special
Counsel under subchapters II and III of chapter 12 of title 5 of the
United States Code.
(iii) Except for actions involving discrimination under 5 U.S.C.
2302(b)(1) or any other prohibited personnel practice, any appealable
action that is excluded from the application of the negotiated grievance
procedures may be raised only under the Board's appellate procedures.
(2) Choice of procedure. When an employee has an option of pursuing
an action under the Board's appeal procedures or under negotiated
grievance procedures, the Board considers the choice between those
procedures to have been made when the employee timely files an appeal
with the Board or timely files a written grievance, whichever event
occurs first. When an employee has the choice of pursuing an appealable
action involving a prohibited personnel practice other than
discrimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph
(c)(1)(ii) of this section, the Board considers the choice among those
procedures to have been made when the employee timely files an appeal
with the Board, timely files a written grievance under the negotiated
grievance procedure, or seeks corrective action from the Special Counsel
by making an allegation under 5 U.S.C. 1214(a)(1), whichever event
occurs first.
(3) Review of discrimination grievances. If an employee chooses the
negotiated grievance procedure under paragraph (c)(2) of this section
and alleges discrimination as described at 5 U.S.C. 2302(b)(1), then the
employee, after having obtained a final decision under the negotiated
grievance procedure, may
[[Page 13]]
ask the Board to review that final decision. The request must be filed
with the Clerk of the Board in accordance with Sec. 1201.154.
[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991;
59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045,
Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66
FR 30635, June 7, 2001; 70 FR 30608, May 27, 2005]
Sec. 1201.4 General definitions.
(a) Judge. Any person authorized by the Board to hold a hearing or
to decide a case without a hearing, including an attorney-examiner, an
administrative judge, an administrative law judge, the Board, or any
member of the Board.
(b) Pleading. Written submission setting out claims, allegations,
arguments, or evidence. Pleadings include briefs, motions, petitions,
attachments, and responses.
(c) Motion. A request that a judge take a particular action.
(d) Appropriate regional or field office. The regional or field
office of the Board that has jurisdiction over the area where the
appellant's duty station was located when the agency took the action.
Appeals of Office of Personnel Management reconsideration decisions
concerning retirement benefits, and appeals of adverse suitability
determinations under 5 CFR part 731, must be filed with the regional or
field office that has jurisdiction over the area where the appellant
lives. Appendix II of these regulations lists the geographic areas over
which each of the Board's regional and field offices has jurisdiction.
Appeals, however, may be transferred from one regional or field office
to another.
(e) Party. A person, an agency, or an intervenor, who is
participating in a Board proceeding. This term applies to the Office of
Personnel Management and to the Office of Special Counsel when those
organizations are participating in a Board proceeding.
(f) Appeal. A request for review of an agency action.
(g) Petition for review. A request for review of an initial decision
of a judge.
(h) Day. Calendar day.
(i) Service. The process of furnishing a copy of any pleading to
Board officials, other parties, or both, by mail, by facsimile, by
commercial or personal delivery, or by electronic filing (e-filing) in
accordance with Sec. 1201.14.
(j) Date of service. The date on which documents are served on other
parties.
(k) Certificate of service. A document certifying that a party has
served copies of pleadings on the other parties or, in the case of paper
documents associated with electronic filings under paragraph (g) of
Sec. 1201.14, on the Board.
(l) Date of filing. A document that is filed with a Board office by
personal delivery is considered filed on the date on which the Board
office receives it. The date of filing by facsimile is the date of the
facsimile. The date of filing by mail is determined by the postmark
date; if no legible postmark date appears on the mailing, the submission
is presumed to have been mailed five days (excluding days on which the
Board is closed for business) before its receipt. The date of filing by
commercial delivery is the date the document was delivered to the
commercial delivery service. The date of filing by e-filing is the date
of electronic submission.
(m) Electronic filing (e-filing). Filing and receiving documents in
electronic form in proceedings within the Board's appellate or original
jurisdiction in accordance with Sec. 1201.14.
(n) E-filer. A party or representative who has registered to engage
in e-filing under paragraph (e) of Sec. 1201.14.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59
FR 65235, Dec. 19, 1994; 68 FR 59860, Oct. 20, 2003; 69 FR 57628, Sept.
27, 2004]
Subpart B_Procedures for Appellate Cases
General
Sec. 1201.11 Scope and policy.
The regulations in this subpart apply to Board appellate proceedings
except as otherwise provided in Sec. 1201.13. The regulations in this
subpart apply also to appellate proceedings and stay requests covered by
part 1209 unless other specific provisions are made in that part. These
regulations also apply to original jurisdiction proceedings of the Board
except as otherwise provided in subpart D. It is the Board's policy
[[Page 14]]
that these rules will be applied in a manner that expedites the
processing of each case, with due regard to the rights of all parties.
Sec. 1201.12 Revocation, amendment, or waiver of rules.
The Board may revoke, amend, or waive any of these regulations. A
judge may, for good cause shown, waive a Board regulation unless a
statute requires application of the regulation. The judge must give
notice of the waiver to all parties, but is not required to give the
parties an opportunity to respond.
Sec. 1201.13 Appeals by Board employees.
Appeals by Board employees will be filed with the Clerk of the Board
and will be assigned to an administrative law judge for adjudication
under this subchapter. The Board's policy is to insulate the
adjudication of its own employees' appeals from agency involvement as
much as possible. Accordingly, the Board will not disturb initial
decisions in those cases unless the party shows that there has been
harmful procedural irregularity in the proceedings before the
administrative law judge or a clear error of law. In addition, the
Board, as a matter of policy, will not rule on any interlocutory appeals
or motions to disqualify the administrative law judge assigned to those
cases until the initial decision has been issued.
Sec. 1201.14 Electronic filing procedures.
(a) General. This section prescribes the rules and procedures by
which parties and representatives to proceedings within the Board's
appellate and original jurisdiction may file and receive documents in
electronic form.
(b) Matters subject to electronic filing. Subject to the
registration requirement of paragraph (e) of this section, parties and
representatives may use electronic filing (e-filing) to do any of the
following:
(1) File any pleading, including a new appeal, in any matter within
the Board's appellate jurisdiction (Sec. 1201.3);
(2) File any pleading, other than the original complaint or request,
in any matter within the Board's original jurisdiction (Sec. 1201.2);
(3) File a petition for enforcement of a final Board decision (Sec.
1201.182);
(4) File a motion for attorney fees as a prevailing party (Sec.
1201.203);
(5) File a motion for compensatory or consequential damages (Sec.
1201.204);
(6) Designate a representative, revoke such a designation, or change
such a designation (Sec. 1201.31); or
(7) Notify the Board of a change in contact information such as
address (geographic or electronic mail) or telephone number.
(c) Matters excluded from electronic filing. Electronic filing may
not be used to:
(1) File the original complaint or request in a matter within the
Board's original jurisdiction, which includes: a complaint filed by the
Special Counsel seeking corrective or disciplinary action (Sec. Sec.
1201.122, 1201.128); a request by the Special Counsel for the stay of
certain personnel actions (Sec. 1201.134); a proposal to take action
against an administrative law judge under 5 U.S.C. 7521 (Sec.
1201.137); or a request for a hearing on a proposed removal of a career
appointee from the Senior Executive Service for performance reasons
(Sec. 1201.143);
(2) File a request to hear a case as a class appeal or any
opposition thereto (Sec. 1201.27);
(3) Serve a subpoena (Sec. 1201.83); or
(4) File a pleading with the Special Panel (Sec. 1201.137).
(d) Internet is sole venue for electronic filing. Following the
instructions at the Board's e-Appeal site (https://e-appeal.mspb.gov) is
the only method allowed for filing electronic pleadings with the Board.
The Board will not accept pleadings filed by electronic mail.
(e) Registration as an e-filer. (1) Except when filing a new appeal
within the Board's appellate jurisdiction (Sec. 1201.3), no party or
representative may file an electronic pleading with the Board unless he
or she has registered with the Board as an e-filer. Registration as an
e-filer constitutes consent to accept electronic service of pleadings
filed by other registered e-filers and documents issued by the Board.
(2) The exclusive means for a party or representative to register as
an e-filer during a Board proceeding is to follow
[[Page 15]]
the instructions at the Board's e-Appeal site (https://e-
appeal.mspb.gov).
(3) When a party who is an individual is represented, the party and
the representative can make separate determinations whether to register
as an e-filer. For example, an appellant may file and receive pleadings
and Board documents by non-electronic means, even though his or her
representative has registered as an e-filer. Similarly, when a party has
more than one representative, each representative has the choice of
registering as an e-filer or filing and receiving pleadings and Board
documents by non-electronic means.
(4) A party or representative who has registered as an e-filer may
file any pleading, or portion of a pleading as described in paragraph
(g) of this section, by non-electronic means.
(5) A party or representative may withdraw his or her registration
as an e-filer. Such withdrawal means that, effective upon the Board's
receipt of this withdrawal, pleadings and Board documents will no longer
be served on that person in electronic form. A withdrawal of
registration as an e-filer may be filed at the Board's e-Appeal site, in
which case service is governed by paragraph (h) of this section, or by
non-electronic means, in which case service is governed by section
1201.26(b) of this part.
(f) Form of electronic pleadings--(1) Options for e-filing. An
appellant or representative using e-Appeal to file a new appeal within
the Board's appellate jurisdiction (Sec. 1201.3) must complete the
structured interview at the Board's e-Appeal site (https://e-
appeal.mspb.gov). For all other pleadings, the e-filer has the option of
uploading an electronic file or entering the text of the pleading
online. Regardless of the means of filing a particular pleading, the e-
filer will be allowed to submit supporting documentation as attachments,
in both electronic and paper form, as described in paragraphs (f)(2) and
(f)(3) of this section.
(2) Electronic formats allowed. The Board will accept numerous
electronic formats, including word-processing and spreadsheet formats,
Portable Document Format (PDF), and image files (files created by
scanning). A list of formats allowed can be found at the Board's e-
Appeal site. All electronic documents must be formatted so that they
will print on standard 8\1/2\ inch by 11 inch paper.
(3) Limitation on number of electronic attachments. E-filers may
upload up to three electronic files as supporting documentation, in
addition to the document that constitutes the primary pleading. There is
no limit on the number of non-electronic documents that may be submitted
as attachments under paragraph (g) of this section.
(g) Hybrid pleadings that include both electronic and paper
documents. An e-filer may file a hybrid pleading in which part of the
pleading is submitted electronically, and part of the pleading consists
of one or more paper documents filed by non-electronic means. If one or
more parts of a hybrid pleading are untimely filed, the judge or the
Clerk may reject the untimely part or parts while accepting timely filed
parts of the same pleading.
(h) Service of electronic pleadings. The Board will serve electronic
pleadings on other parties and representatives who have registered as e-
filers. The Board's e-Appeal application will notify the e-filer of all
documents that must be served by non-electronic means. The e-filer must
certify that he or she will serve all such documents no later than the
first business day after the electronic submission.
(i) Documents requiring a signature. An electronic document filed by
a party who has registered as an e-filer pursuant to this section shall
be deemed to be signed for purposes of any regulation in part 1201,
1203, 1208, or 1209 of this title that requires a signature.
(j) Affidavits and declarations made under penalty of perjury.
Registered e-filers may submit electronic pleadings in the form of
declarations made under penalty of perjury under 28 U.S.C. 1746, as
described in Appendix IV of this part. If the declarant is someone other
than the e-filer, a physically signed affidavit or declaration should be
uploaded as an image file, or submitted separately as a non-electronic
document under paragraph (g) of this section.
(k) Issuance of Board documents to e-filers. The Board's notices,
orders, and
[[Page 16]]
decisions will be served on e-filers as PDF files attached to electronic
mail messages, which will be sent to the electronic mail address
supplied by the e-filer.
(l) Date electronic documents are received. Pleadings and Board
documents served electronically on registered e-filers are deemed
received on the date of electronic submission or, if submitted on a
weekend or federal holiday, on the first business day after the
electronic submission.
(m) Authority of a judge or the Clerk to regulate e-filing. (1) In
the event that the Board or any party encounters repeated or unexplained
difficulties filing, serving, or receiving electronic documents, the
judge or the Clerk of the Board may order one or more parties to cease
filing pleadings by e-filing, cease serving documents in electronic
form, or take both these actions. In such instances, filing and service
shall be undertaken in accordance with Sec. 1201.26. The authority to
order the cessation of the use of electronic filing may be for a
particular submission, for a particular time frame, or for the duration
of the pendency of a case.
(2) A judge or the Clerk of the Board may require that any document
filed electronically be submitted in non-electronic form and bear the
written signature of the submitter. A party receiving such an order from
a judge or the Clerk of the Board shall, within 5 calendar days, serve
on the judge or Clerk of the Board by regular mail, by facsimile, or by
commercial or personal delivery a signed, non-electronic copy of the
document.
[69 FR 57628, Sept. 27, 2004]
Appeal of Agency Action; Pleadings
Sec. 1201.21 Notice of appeal rights.
When an agency issues a decision notice to an employee on a matter
that is appealable to the Board, the agency must provide the employee
with the following:
(a) Notice of the time limits for appealing to the Board, the
requirements of Sec. 1201.22(c), and the address of the appropriate
Board office for filing the appeal;
(b) A copy, or access to a copy, of the Board's regulations;
(c) A copy of the appeal form in appendix I of this part; and
(d) Notice of any right the employee has to file a grievance,
including:
(1) Whether the election of any applicable grievance procedure will
result in waiver of the employee's right to file an appeal with the
Board;
(2) Whether both an appeal to the Board and a grievance may be filed
on the same matter and, if so, the circumstances under which proceeding
with one will preclude proceeding with the other, and specific notice
that filing a grievance will not extend the time limit for filing an
appeal with the Board; and
(3) Whether there is any right to request Board review of a final
decision on a grievance in accordance with Sec. 1201.154(d).
[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 25624, May 3, 2000]
Sec. 1201.22 Filing an appeal and responses to appeals.
(a) Place of filing. Appeals, and responses to those appeals, must
be filed with the appropriate Board regional or field office. See Sec.
1201.4(d) of this part.
(b) Time of filing. (1) Except as provided in paragraph (b)(2) of
this section, an appeal must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30 days after
the date of receipt of the agency's decision, whichever is later. Where
an appellant and an agency mutually agree in writing to attempt to
resolve their dispute through an alternative dispute resolution process
prior to the timely filing of an appeal, however, the time limit for
filing the appeal is extended by an additional 30 days--for a total of
60 days. A response to an appeal must be filed within 20 days of the
date of the Board's acknowledgment order. The time for filing a
submission under this section is computed in accordance with Sec.
1201.23 of this part.
(2) The time limit prescribed by paragraph (b)(1) for filing an
appeal does not apply where a law or regulation establishes a different
time limit or where there is no applicable time limit. No time limit
applies to appeals under the Uniformed Services Employment and
Reemployment Rights Act (Public
[[Page 17]]
Law 103-353), as amended; see part 1208 of this title. See part 1208 of
this title for the statutory filing time limits applicable to appeals
under the Veterans Employment Opportunities Act (Public Law 105-339).
See part 1209 of this title for the statutory filing time limits
applicable to whistleblower appeals and stay requests.
(c) Timeliness of appeals. If a party does not submit an appeal
within the time set by statute, regulation, or order of a judge, it will
be dismissed as untimely filed unless a good reason for the delay is
shown. The judge will provide the party an opportunity to show why the
appeal should not be dismissed as untimely.
(d) Method of filing an appeal. Filing of an appeal must be made
with the appropriate Board office by commercial or personal delivery, by
facsimile, by mail, or by electronic filing under Sec. 1201.14.
(e) Filing a response. Filing of a response must be made with the
appropriate Board office by commercial or personal delivery, by
facsimile, by mail, or by electronic filing under Sec. 1201.14.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59
FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 59992, Nov.
6, 1997; 62 FR 66814, Dec. 22, 1997; 64 FR 27899, May 24, 1999; 64 FR
54508, Oct. 7, 1999; 65 FR 5409, Feb. 4, 2000; 68 FR 59862, Oct. 20,
2003; 69 FR 57629, Sept. 27, 2004]
Sec. 1201.23 Computation of time.
In computing the number of days allowed for filing a submission, the
first day counted is the day after the event from which the time period
begins to run. If the date that ordinarily would be the last day for
filing falls on a Saturday, Sunday, or Federal holiday, the filing
period will include the first workday after that date.
Example: If an employee receives a decision notice that is effective
on July 1, the 30-day period for filing an appeal starts to run on July
2. The filing ordinarily would be timely only if it is made by July 31.
If July 31 is a Saturday, however, the last day for filing would be
Monday, August 2.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994]
Sec. 1201.24 Content of an appeal; right to hearing.
(a) Content. Only an appellant, his or her designated
representative, or a party properly substituted under Sec. 1201.35 may
file an appeal. Appeals may be in any format, including letter form. An
appeal may be filed in electronic form provided that the requirements of
Sec. 1201.14 have been satisfied. All appeals must contain the
following:
(1) The name, address, and telephone number of the appellant, and
the name and address of the agency that took the action;
(2) A description of the action the agency took and its effective
date;
(3) A request for hearing if the appellant wants one;
(4) A statement of the reasons why the appellant believes the agency
action is wrong;
(5) A statement of the action the appellant would like the judge to
order;
(6) The name, address, and telephone number of the appellant's
representative, if the appellant has a representative;
(7) The notice of the decision to take the action being appealed,
along with any relevant documents;
(8) A statement telling whether the appellant or anyone acting on
his or her behalf has filed a grievance or a formal discrimination
complaint with any agency regarding this matter; and
(9) The signature of the appellant or, if the appellant has a
representative, of the representative. If the appeal is electronically
filed, compliance with Sec. 1201.14 and the directions at the Board's
e-Appeal site (https://e-appeal.mspb.gov) satisfy the signature
requirement.
(b) An appellant may raise a claim or defense not included in the
appeal at any time before the end of the conference(s) held to define
the issues in the case. An appellant may not raise a new claim or
defense after that time, except for good cause shown. However, a claim
or defense not included in the appeal may be excluded if a party shows
that including it would result in undue prejudice.
(c) Use of Board form or electronic filing. An appellant may comply
with paragraph (a) of this section, and with Sec. 1201.31, by
completing MSPB Form
[[Page 18]]
185, or by completing all requests for information marked as required at
the e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be
accessed at the Board's Web site (http://www.mspb.gov).
(d) Right to hearing. Under 5 U.S.C. 7701, an appellant has a right
to a hearing.
(e) Timely request. The appellant must submit any request for a
hearing with the appeal, or within any other time period the judge sets
for that purpose. If the appellant does not make a timely request for a
hearing, the right to a hearing is waived.
[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59862, Oct. 20, 2003;
69 FR 57629, Sept. 27, 2004]
Sec. 1201.25 Content of agency response.
The agency response to an appeal must contain the following:
(a) The name of the appellant and of the agency whose action the
appellant is appealing;
(b) A statement identifying the agency action taken against the
appellant and stating the reasons for taking the action;
(c) All documents contained in the agency record of the action;
(d) Designation of and signature by the authorized agency
representative; and
(e) Any other documents or responses requested by the Board.
Sec. 1201.26 Number of pleadings, service, and response.
(a) Number. The appellant must file two copies of both the appeal
and all attachments with the appropriate Board office, unless the
appellant files an appeal in electronic form under Sec. 1201.14.
(b) Service--(1) Service by the Board. The appropriate office of the
Board will mail a copy of the appeal to each party to the proceeding
other than the appellant. It will attach to each copy a service list,
consisting of a list of the names and addresses of the parties to the
proceeding or their designated representatives.
(2) Service by the parties. The parties must serve on each other one
copy of each pleading, as defined by Sec. 1201.4(b), and all documents
submitted with it, except for the appeal. They may do so by mail, by
facsimile, by commercial or personal delivery, or by electronic filing
in accordance with Sec. 1201.14. Documents and pleadings must be served
upon each party and each representative. A certificate of service
stating how and when service was made must accompany each pleading. The
parties must notify the appropriate Board office and one another, in
writing, of any changes in the names, or addresses on the service list.
(c) Paper size. Pleadings and attachments must be filed on 8\1/2\ by
11-inch paper, except for good cause shown. This requirement enables the
Board to comply with standards established for U.S. courts. All
electronic documents must be formatted so that they will print on 8\1/2\
by 11-inch paper.
[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58
FR 36345, July 7, 1993; 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept.
27, 2004]
Sec. 1201.27 Class appeals.
(a) Appeal. One or more employees may file an appeal as
representatives of a class of employees. The judge will hear the case as
a class appeal if he or she finds that a class appeal is the fairest and
most efficient way to adjudicate the appeal and that the representative
of the parties will adequately protect the interests of all parties.
When a class appeal is filed, the time from the filing date until the
judge issues his or her decision under paragraph (b) of this section is
not counted in computing the time limit for individual members of the
potential class to file individual appeals.
(b) Procedure. The judge will consider the appellant's request and
any opposition to that request, and will issue an order within 30 days
after the appeal is filed stating whether the appeal is to be heard as a
class appeal. If the judge denies the request, the appellants affected
by the decision may file individual appeals within 30 days after the
date of receipt of the decision denying the request to be heard as a
class appeal. Each individual appellant is responsible for either filing
an individual appeal within the original time limit, or keeping informed
of the status of a class appeal and, if the class appeal is
[[Page 19]]
denied, filing an individual appeal within the additional 35-day period.
(c) Standards. In determining whether it is appropriate to treat an
appeal as a class action, the judge will be guided but not controlled by
the applicable provisions of the Federal Rules of Civil Procedure.
(d) Electronic filing. A request to hear a case as a class appeal
and any opposition thereto may not be filed in electronic form.
Subsequent pleadings may be filed and served in electronic form,
provided that the requirements of Sec. 1201.14 are satisfied.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994;
62 FR 59992, Nov. 6, 1997; 68 FR 59862, Oct. 20, 2003; 69 FR 57630,
Sept. 27, 2004]
Sec. 1201.28 Case suspension procedures.
(a) Joint requests. The parties may submit a joint request for
additional time to pursue discovery or settlement. Upon receipt of such
request, an order suspending processing of the case for a period up to
30 days may be issued at the discretion of the judge.
(b) Unilateral requests. In lieu of participating in a joint
request, either party may submit a unilateral request for additional
time to pursue discovery as provided in this subpart. Unilateral
requests for additional time of up to 30 days may be granted for good
cause shown at the discretion of the judge.
(c) Time for filing requests. The parties must file a joint request
that the adjudication of the appeal be suspended within 45 days of the
date of the acknowledgment order (or within 7 days of the appellant's
receipt of the agency file, whichever date is later).
(d) Untimely requests. The judge may consider requests for
suspensions that are filed after the time limit set forth in paragraph
(c) of this section. Such requests may be granted at the discretion of
the judge.
(e) Early termination of suspension period. The suspension period
may be terminated prior to the end of the agreed upon period if the
parties request the judge's assistance relative to discovery or
settlement during the suspension period and the judge's involvement
pursuant to that request is likely to be extensive.
(f) Limitation on suspension period. No case may be suspended for
more than a total of 30 days under the provisions of this section.
[68 FR 54651, Sept. 18, 2003]
Parties, Representatives, and Witnesses
Sec. 1201.31 Representatives.
(a) Procedure. A party to an appeal may be represented in any matter
related to the appeal. Parties may designate a representative, revoke
such a designation, and change such a designation in a signed
submission, submitted as a pleading.
(b) A party may choose any representative as long as that person is
willing and available to serve. The other party or parties may challenge
the designation, however, on the ground that it involves a conflict of
interest or a conflict of position. Any party who challenges the
designation must do so by filing a motion with the judge within 15 days
after the date of service of the notice of designation. The judge will
rule on the motion before considering the merits of the appeal. These
procedures apply equally to each designation of representative,
regardless of whether the representative was the first one designated by
a party or a subsequently designated representative. If a representative
is disqualified, the judge will give the party whose representative was
disqualified a reasonable time to obtain another one.
(c) The judge, on his or her own motion, may disqualify a party's
representative on the grounds described in paragraph (b) of this
section.
(d)(1) A judge may exclude a party, a representative, or other
person from all or any portion of the proceeding before him or her for
contumacious misconduct or conduct that is prejudicial to the
administration of justice.
(2) When a judge determines that a person should be excluded from
participation in a proceeding, the judge shall inform the person of this
determination through issuance of an order to show cause why he or she
should not be excluded. The show cause order shall be delivered to the
person by the most expeditious means of delivery available, including
issuance of an oral order on
[[Page 20]]
the record where the determination to exclude the person is made during
a hearing. The person must respond to the judge's show cause order
within three days (excluding Saturdays, Sundays, and Federal holidays)
of receipt of the order, unless the judge provides a different time
limit, or forfeit the right to seek certification of a subsequent
exclusion order as an interlocutory appeal to the Board under paragraph
(d)(3) of this section.
(3) When, after consideration of the person's response to the show
cause order, or in the absence of a response to the show cause order,
the judge determines that the person should be excluded from
participation in the proceeding, the judge shall issue an order that
documents the reasons for the exclusion. The person may obtain review of
the judge's ruling by filing, within three days (excluding Saturdays,
Sundays, and Federal holidays) of receipt of the ruling, a motion that
the ruling be certified to the Board as an interlocutory appeal. The
judge shall certify an interlocutory appeal to the Board within one day
(excluding Saturdays, Sundays, and Federal holidays) of receipt of such
a motion. Only the provisions of this paragraph apply to interlocutory
appeals of rulings excluding a person from a proceeding; the provisions
of Sec. Sec. 1201.91 through 1201.93 of this part shall not apply.
(4) A proceeding will not be delayed because the judge excludes a
person from the proceeding, except that:
(i) Where the judge excludes a party's representative, the judge
will give the party a reasonable time to obtain another representative;
and
(ii) Where the judge certifies an interlocutory appeal of an
exclusion ruling to the Board, the judge or the Board may stay the
proceeding sua sponte or on the motion of a party for a stay of the
proceeding.
(5) The Board, when considering a petition for review of a judge's
initial decision under subpart C of this part, will not be bound by any
decision of the judge to exclude a person from the proceeding below.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997;
62 FR 66815, Dec. 22, 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, Feb.
4, 2000; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004]
Sec. 1201.32 Witnesses; right to representation.
Witnesses have the right to be represented when testifying. The
representative of a nonparty witness has no right to examine the witness
at the hearing or otherwise participate in the development of testimony.
Sec. 1201.33 Federal witnesses.
(a) Every Federal agency or corporation must make its employees or
personnel available to furnish sworn statements or to appear as
witnesses at the hearing when ordered by the judge to do so. When
providing those statements or appearing at the hearing, Federal employee
witnesses will be in official duty status (i.e., entitled to pay and
benefits including travel and per diem, where appropriate).
(b) A Federal employee who is denied the official time required by
paragraph (a) of this section may file a written request that the judge
order the employing agency to provide such official time. The judge will
act on such a request promptly and, where warranted, will order the
agency to comply with the requirements of paragraph (a) of this section.
(c) An order obtained under paragraph (b) of this section may be
enforced as provided under subpart F of this part.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997]
Sec. 1201.34 Intervenors and amicus curiae.
(a) Explanation of Intervention. Intervenors are organizations or
persons who want to participate in a proceeding because they believe the
proceeding, or its outcome, may affect their rights or duties.
Intervenors as a ``matter of right'' are those parties who have a
statutory right to participate. ``Permissive'' intervenors are those
parties who may be permitted to participate if the proceeding will
affect
[[Page 21]]
them directly and if intervention is otherwise appropriate under law. A
request to intervene may be made by motion filed with the judge.
(b) Intervenors as a matter of right. (1) The Director of the Office
of Personnel Management may intervene as a matter of right under 5
U.S.C. 7701(d)(1). The motion to intervene must be filed at the earliest
practicable time.
(2)(i) Except as provided in paragraph (b)(2)(ii) of this section,
the Special Counsel may intervene as a matter of right under 5 U.S.C.
1212(c). The motion to intervene must be filed at the earliest
practicable time.
(ii) The Special Counsel may not intervene in an action brought by
an individual under 5 U.S.C. 1221, or in an appeal brought by an
individual under 5 U.S.C. 7701, without the consent of that individual.
The Special Counsel must present evidence that the individual has
consented to the intervention at the time the motion to intervene is
filed.
(c) Permissive intervenors. (1) Any person, organization or agency
may, by motion, ask the judge for permission to intervene. The motion
must explain the reason why the person, organization or agency should be
permitted to intervene.
(2) A motion for permission to intervene will be granted where the
requester will be affected directly by the outcome of the proceeding.
Any person alleged to have committed a prohibited personnel practice
under 5 U.S.C. 2302(b) may request permission to intervene. A judge's
denial of a motion for permissive intervention may be appealed to the
Board under Sec. 1201.91 of this part.
(d) Role of intervenors. Intervenors have the same rights and duties
as parties, with the following two exceptions:
(1) Intervenors do not have an independent right to a hearing; and
(2) Permissive intervenors may participate only on the issues
affecting them. The judge is responsible for determining the issues on
which permissive intervenors may participate.
(e) Amicus curiae. An amicus curiae is a person or organization
that, although not a party to an appeal, gives advice or suggestions by
filing a brief with the judge regarding an appeal. Any person or
organization, including those who do not qualify as intervenors, may, in
the discretion of the judge, be granted permission to file an amicus
curiae brief.
Sec. 1201.35 Substituting parties.
(a) If an appellant dies or is otherwise unable to pursue the
appeal, the processing of the appeal will only be completed upon
substitution of a proper party. Substitution will not be permitted where
the interests of the appellant have terminated because of the
appellant's death or other disability.
(b) The representative or proper party must file a motion for
substitution within 90 days after the death or other disabling event,
except for good cause shown.
(c) In the absence of a timely substitution of a party, the
processing of the appeal may continue if the interests of the proper
party will not be prejudiced.
Sec. 1201.36 Consolidating and joining appeals.
(a) Explanation. (1) Consolidation occurs when the appeals of two or
more parties are united for consideration because they contain identical
or similar issues. For example, individual appeals rising from a single
reduction in force might be consolidated.
(2) Joinder occurs when one person has filed two or more appeals and
they are united for consideration. For example, a judge might join an
appeal challenging a 30-day suspension with a pending appeal challenging
a subsequent dismissal if the same appellant filed both appeals.
(b) Action by judge. A judge may consolidate or join cases on his or
her own motion or on the motion of a party if doing so would:
(1) Expedite processing of the cases; and
(2) Not adversely affect the interests of the parties.
(c) Any objection to a motion for consolidation or joinder must be
filed within 10 days of the date of service of the motion.
Sec. 1201.37 Witness fees.
(a) Federal employees. Employees of a Federal agency or corporation
testifying in any Board proceeding or making a statement for the record
will be
[[Page 22]]
in official duty status and will not receive witness fees.
(b) Other witnesses. Other witnesses (whether appearing voluntarily
or under subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United States.
(c) Payment of witness fees and travel costs. The party requesting
the presence of a witness must pay that witness' fees. Those fees must
be paid or offered to the witness at the time the subpoena is served,
or, if the witness appears voluntarily, at the time of appearance. A
Federal agency or corporation is not required to pay or offer witness
fees in advance.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994;
59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997]
Judges
Sec. 1201.41 Judges.
(a) Exercise of authority. Judges may exercise authority as provided
in paragraphs (b) and (c) of this section on their own motion or on the
motion of a party, as appropriate.
(b) Authority. Judges will conduct fair and impartial hearings and
will take all necessary action to avoid delay in all proceedings. They
will have all powers necessary to that end unless those powers are
otherwise limited by law. Judges' powers include, but are not limited
to, the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas under Sec. 1201.81 of this part;
(3) Rule on offers of proof and receive relevant evidence;
(4) Rule on discovery motions under Sec. 1201.73 of this part;
(5) After notice to the parties, order a hearing on his or her own
initiative if the judge determines that a hearing is necessary:
(i) To resolve an important issue of credibility;
(ii) To ensure that the record on significant issues is fully
developed; or
(iii) To otherwise ensure a fair and just adjudication of the case;
(6) Convene a hearing as appropriate, regulate the course of the
hearing, maintain decorum, and exclude any disruptive persons from the
hearing;
(7) Exclude any person from all or any part of the proceeding before
him or her as provided under Sec. 1201.31(d) of this part;
(8) Rule on all motions, witness and exhibit lists, and proposed
findings;
(9) Require the parties to file memoranda of law and to present oral
argument with respect to any question of law;
(10) Order the production of evidence and the appearance of
witnesses whose testimony would be relevant, material, and
nonrepetitious;
(11) Impose sanctions as provided under Sec. 1201.43 of this part;
(12) Hold prehearing conferences for the settlement and
simplification of issues;
(13) Require that all persons who can be identified from the record
as being clearly and directly affected by a pending retirement-related
case be notified of the appeal and of their right to request
intervention so that their interests can be considered in the
adjudication;
(14) Issue any order that may be necessary to protect a witness or
other individual from harassment and provide for enforcement of such
order in accordance with subpart F;
(15) Issue initial decisions; and
(16) Determine, in decisions in which the appellant is the
prevailing party, whether the granting of interim relief is appropriate.
(c) Settlement--(1) Settlement discussion. The judge may initiate
attempts to settle the appeal informally at any time. The parties may
agree to waive the prohibitions against ex parte communications during
settlement discussions, and they may agree to any limits on the waiver.
(2) Agreement. If the parties agree to settle their dispute, the
settlement agreement is the final and binding resolution of the appeal,
and the judge will dismiss the appeal with prejudice.
(i) If the parties offer the agreement for inclusion in the record,
and if the judge approves the agreement, it will be made a part of the
record, and the Board will retain jurisdiction to ensure compliance with
the agreement.
[[Page 23]]
(ii) If the agreement is not entered into the record, the Board will
not retain jurisdiction to ensure compliance.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997;
63 FR 35500, June 30, 1998]
Sec. 1201.42 Disqualifying a judge.
(a) If a judge considers himself or herself disqualified, he or she
will withdraw from the case, state on the record the reasons for doing
so, and immediately notify the Board of the withdrawal.
(b) A party may file a motion asking the judge to withdraw on the
basis of personal bias or other disqualification. This motion must be
filed as soon as the party has reason to believe there is a basis for
disqualification. The reasons for the request must be set out in an
affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)
(c) If the judge denies the motion, the party requesting withdrawal
may request certification of the issue to the Board as an interlocutory
appeal under Sec. 1201.91 of this part. Failure to request
certification is considered a waiver of the request for withdrawal.
Sec. 1201.43 Sanctions.
The judge may impose sanctions upon the parties as necessary to
serve the ends of justice. This authority covers, but is not limited to,
the circumstances set forth in paragraphs (a), (b), and (c) of this
section.
(a) Failure to comply with an order. When a party fails to comply
with an order, the judge may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) Prohibit the party failing to comply with the order from
introducing evidence concerning the information sought, or from
otherwise relying upon testimony related to that information;
(3) Permit the requesting party to introduce secondary evidence
concerning the information sought; and
(4) Eliminate from consideration any appropriate part of the
pleadings or other submissions of the party that fails to comply with
the order.
(b) Failure to prosecute or defend appeal. If a party fails to
prosecute or defend an appeal, the judge may dismiss the appeal with
prejudice or rule in favor of the appellant.
(c) Failure to make timely filing. The judge may refuse to consider
any motion or other pleading that is not filed in a timely fashion in
compliance with this subpart.
Hearings
Sec. 1201.51 Scheduling the hearing.
(a) The hearing will be scheduled not earlier than 15 days after the
date of the hearing notice unless the parties agree to an earlier date.
The agency, upon request of the judge, must provide appropriate hearing
space.
(b) The judge may change the time, date, or place of the hearing, or
suspend, adjourn, or continue the hearing. The change will not require
the 15-day notice provided in paragraph (a) of this section.
(c) Either party may file a motion for postponement of the hearing.
The motion must be made in writing and must either be accompanied by an
affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)
The affidavit or sworn statement must describe the reasons for the
request. The judge will grant the request for postponement only upon a
showing of good cause.
(d) The Board has established certain approved hearing locations,
which are published as a Notice in the Federal Register. See appendix
III. Parties, for good cause, may file motions requesting a different
hearing location. Rulings on those motions will be based on a showing
that a different location will be more advantageous to all parties and
to the Board.
Sec. 1201.52 Public hearings.
Hearings are open to the public. The judge may order a hearing or
any part of a hearing closed, however, when doing so would be in the
best interests of the appellant, a witness, the public, or any other
person affected by the proceeding. Any order closing the hearing will
set out the reasons for the judge's decision. Any objections to the
order will be made a part of the record.
Sec. 1201.53 Record of proceedings.
(a) Preparation. A word-for-word record of the hearing is made under
the
[[Page 24]]
judge's guidance. It is kept in the Board's copy of the appeal file and
it is the official record of the hearing. Only hearing tape recordings
or written transcripts prepared by the official hearing reporter will be
accepted by the Board as the official record of the hearing. When the
judge assigned to the case tape records a hearing (for example, a
telephonic hearing in a retirement appeal), the judge is the ``official
hearing reporter'' under this section.
(b) Copies. When requested and when costs are paid, a copy of the
official record of the hearing will be provided to a party. A party must
send a request for a copy of a hearing tape recording or written
transcript to the adjudicating regional or field office, or to the Clerk
of the Board, as appropriate. A request for a copy of a hearing tape
recording or written transcript sent by a non-party is controlled by the
Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests
for hearing tape recordings or written transcripts under the Freedom of
Information Act must be sent to the appropriate Regional Director, the
Chief Administrative Judge of the appropriate MSPB Field Office, or to
the Clerk of the Board at MSPB headquarters in Washington, DC.
(c) Exceptions to payment of costs. A party may not have to pay for
a hearing tape recording or written transcript if he has a good reason
to support a request for an exception. If a party believes he has a good
reason and the request is made before the judge issues an initial
decision, the party must send the request for an exception to the judge.
If the request is made after the judge issues an initial decision, the
request must be sent to the Clerk of the Board, who shall have authority
to grant or deny such requests. The party must clearly state the reason
for the request in an affidavit or sworn statement.
(d) Corrections to written transcript. Corrections to the official
written transcript may be made on motion by a party or on the judge's
own motion. Motions for corrections must be filed within 10 days after
the receipt of a written transcript. Corrections of the official written
transcript will be made only when substantive errors are found and only
with the judge's approval.
(e) Official record. Exhibits, the official hearing record, if a
hearing is held, all papers filed, and all orders and decisions of the
judge and the Board, make up the official record of the case.
[65 FR 19293, Apr. 11, 2000, as amended at 70 FR 30608, May 27, 2005]
Sec. 1201.55 Motions.
(a) Form. All motions, except those made during a prehearing
conference or a hearing, must be in writing. All motions must include a
statement of the reasons supporting them. Written motions must be filed
with the judge or the Board, as appropriate, and must be served upon all
other parties in accordance with Sec. 1201.26(b)(2) of this part. A
party filing a motion for extension of time, a motion for postponement
of a hearing, or any other procedural motion must first contact the
other party to determine whether there is any objection to the motion,
and must state in the motion whether the other party has an objection.
(b) Objection. Unless the judge provides otherwise, any objection to
a written motion must be filed within 10 days from the date of service
of the motion. Judges, in their discretion, may grant or deny motions
for extensions of time to file pleadings without providing any
opportunity to respond to the motions.
(c) Motions for extension of time. Motions for extension of time
will be granted only on a showing of good cause.
(d) Motions for protective orders. A motion for an order under 5
U.S.C. 1204(e)(1)(B) to protect a witness or other individual from
harassment must be filed as early in the proceeding as practicable. The
party seeking a protective order must include a concise statement of
reasons justifying the motion, together with any relevant documentary
evidence. An agency, other than the Office of Special Counsel, may not
request such an order with respect to an investigation by the Special
Counsel during the Special Counsel's investigation. An order issued
under this paragraph may be enforced in the
[[Page 25]]
same manner as provided under subpart F for Board final decisions and
orders.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]
Sec. 1201.56 Burden and degree of proof; affirmative defenses.
(a) Burden and degree of proof--(1) Agency: Under 5 U.S.C.
7701(c)(1), and subject to the exceptions stated in paragraph (b) of
this section, the agency action must be sustained if:
(i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is
supported by substantial evidence; or
(ii) It is brought under any other provision of law or regulation
and is supported by a preponderance of the evidence.
(2) Appellant. The appellant has the burden of proof, by a
preponderance of the evidence, with respect to:
(i) Issues of jurisdiction;
(ii) The timeliness of the appeal; and
(iii) Affirmative defenses.
In appeals from reconsideration decisions of the Office of Personnel
Management involving retirement benefits, if the appellant filed the
application, the appellant has the burden of proving, by a preponderance
of the evidence, entitlement to the benefits. An appellant who has
received an overpayment from the Civil Service Retirement and Disability
Fund has the burden of proving, by substantial evidence, eligibility for
waiver or adjustment.
(b) Affirmative defenses of the appellant. Under 5 U.S.C.
7701(c)(2), the Board is required to overturn the action of the agency,
even where the agency has met the evidentiary standard stated in
paragraph (a) of this section, if the appellant:
(1) Shows harmful error in the application of the agency's
procedures in arriving at its decision;
(2) Shows that the decision was based on any prohibited personnel
practice described in 5 U.S.C. 2302(b); or
(3) Shows that the decision was not in accordance with law.
(c) Definitions. The following definitions apply to this part:
(1) Substantial evidence. The degree of relevant evidence that a
reasonable person, considering the record as a whole, might accept as
adequate to support a conclusion, even though other reasonable persons
might disagree. This is a lower standard of proof than preponderance of
the evidence.
(2) Preponderance of the evidence. The degree of relevant evidence
that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be
true than untrue.
(3) Harmful error. Error by the agency in the application of its
procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence
or cure of the error. The burden is upon the appellant to show that the
error was harmful, i.e., that it caused substantial harm or prejudice to
his or her rights.
[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991;
70 FR 30608, May 27, 2005]
Sec. 1201.57 Order of hearing.
(a) In cases in which the agency has taken an action against an
employee, the agency will present its case first.
(b) The appellant will proceed first at hearings convened on the
issues of:
(1) Jurisdiction;
(2) Timeliness; or
(3) Office of Personnel Management disallowance of retirement
benefits, when the appellant applied for those benefits.
(c) The judge may vary the normal order of presenting evidence.
Sec. 1201.58 Closing the record.
(a) When there is a hearing, the record ordinarily will close at the
conclusion of the hearing. When the judge allows the parties to submit
argument, briefs, or documents previously identified for introduction
into evidence, however, the record will remain open for as much time as
the judge grants for that purpose.
(b) If the appellant waives the right to a hearing, the record will
close on the date the judge sets as the final date for the receipt or
filing of submissions of the parties.
(c) Once the record closes, no additional evidence or argument will
be accepted unless the party submitting it shows that the evidence was
not readily available before the record closed.
[[Page 26]]
The judge will include in the record, however, any supplemental
citations received from the parties or approved corrections of the
transcript, if one has been prepared.
Evidence
Sec. 1201.61 Exclusion of evidence and testimony.
Any evidence and testimony that is offered in the hearing and
excluded by the judge will be described, and that description will be
made a part of the record.
Sec. 1201.62 Producing prior statements.
After an individual has given evidence in a proceeding, any party
may request a copy of any prior signed statement made by that individual
that is relevant to the evidence given. If the party refuses to furnish
the statement, the judge may exclude the evidence given.
Sec. 1201.63 Stipulations.
The parties may stipulate to any matter of fact. The stipulation
will satisfy a party's burden of proving the fact alleged.
Sec. 1201.64 Official notice.
Official notice is the Board's or judge's recognition of certain
facts without requiring evidence to be introduced establishing those
facts. The judge, on his or her own motion or on the motion of a party,
may take official notice of matters of common knowledge or matters that
can be verified. The parties may be given an opportunity to object to
the taking of official notice. The taking of official notice of any fact
satisfies a party's burden of proving that fact.
Discovery
Sec. 1201.71 Purpose of discovery.
Proceedings before the Board will be conducted as expeditiously as
possible with due regard to the rights of the parties. Discovery is
designed to enable a party to obtain relevant information needed to
prepare the party's case. These regulations are intended to provide a
simple method of discovery. They will be interpreted and applied so as
to avoid delay and to facilitate adjudication of the case. Parties are
expected to start and complete discovery with a minimum of Board
intervention.
Sec. 1201.72 Explanation and scope of discovery.
(a) Explanation. Discovery is the process, apart from the hearing,
by which a party may obtain relevant information, including the
identification of potential witnesses, from another person or a party,
that the other person or party has not otherwise provided. Relevant
information includes information that appears reasonably calculated to
lead to the discovery of admissible evidence. This information is
obtained to assist the parties in preparing and presenting their cases.
The Federal Rules of Civil Procedure may be used as a general guide for
discovery practices in proceedings before the Board. Those rules,
however, are instructive rather than controlling.
(b) Scope. Discovery covers any nonprivileged matter that is
relevant to the issues involved in the appeal, including the existence,
description, nature, custody, condition, and location of documents or
other tangible things, and the identity and location of persons with
knowledge of relevant facts. Discovery requests that are directed to
nonparties and nonparty Federal agencies and employees are limited to
information that appears directly material to the issues involved in the
appeal.
(c) Methods. Parties may use one or more of the methods provided
under the Federal Rules of Civil Procedure. These methods include
written interrogatories, depositions, requests for production of
documents or things for inspection or copying, and requests for
admission.
(d) Limitations. The judge may limit the frequency or extent of use
of the discovery methods permitted by these regulations. Such
limitations may be imposed if the judge finds that the discovery sought
is:
(1) Cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive;
(2) The party seeking discovery has had sufficient opportunity by
discovery
[[Page 27]]
in the action to obtain the information sought; or
(3) The burden or expense of the proposed discovery outweighs its
likely benefit.
[68 FR 54651, Sept. 18, 2003]
Sec. 1201.73 Discovery procedures.
(a) Discovery from a party. A party seeking discovery from another
party must start the process by serving a request for discovery on the
representative of the other party or the party if there is no
representative. The request for discovery must state the time limit for
responding, as prescribed in Sec. 1201.73(d), and must specify the time
and place of the taking of the deposition, if applicable. When a party
directs a request for discovery to an officer or employee of a Federal
agency that is a party, the agency must make the officer or employee
available on official time to respond to the request, and must assist
the officer or employee as necessary in providing relevant information
that is available to the agency.
(b) Discovery from a nonparty, including a nonparty Federal agency.
Parties should try to obtain voluntary discovery from nonparties
whenever possible. A party seeking discovery from a nonparty Federal
agency or employee must start the process by serving a request for
discovery on the nonparty Federal agency or employee. A party may begin
discovery from other nonparties by serving a request for discovery on
the nonparty directly. If the party seeking the information does not
make that request, or if it does so but fails to obtain voluntary
cooperation, it may obtain discovery from a nonparty by filing a written
motion with the judge, showing the relevance, scope, and materiality of
the particular information sought. If the party seeks to take a
deposition, it should state in the motion the date, time, and place of
the proposed deposition. An authorized official of the Board will issue
a ruling on the motion, and will serve the ruling on the moving party.
That official also will provide that party with a subpoena, if approved,
that is directed to the individual or entity from which discovery is
sought. The subpoena will specify the manner in which the party may seek
compliance with it, and it will specify the time limit for seeking
compliance. The party seeking the information is responsible for serving
any Board-approved discovery request and subpoena on the individual or
entity, or for arranging for their service.
(c) Responses to discovery requests. (1) A party, or a Federal
agency that is not a party, must answer a discovery request within the
time provided under paragraph (d)(2) of this section, either by
furnishing to the requesting party the information or testimony
requested or agreeing to make deponents available to testify within a
reasonable time, or by stating an objection to the particular request
and the reasons for the objection. Non-parties may respond to discovery
requests by electronic mail if authorized by the requesting party.
(2) If a party fails or refuses to respond in full to a discovery
request, or if a nonparty fails or refuses to respond in full to a
Board-approved discovery order, the requesting party may file a motion
to compel discovery. The requesting party must file the motion with the
judge, and must serve a copy of the motion on the other party and on any
nonparty entity or person from whom the discovery was sought. The motion
must be accompanied by:
(i) A copy of the original request and a statement showing that the
information sought is relevant and material; and
(ii) A copy of the response to the request (including the objections
to discovery) or, where appropriate, a statement that no response has
been received, along with an affidavit or sworn statement under 28
U.S.C. 1746 supporting the statement. (See appendix IV to part 1201.)
(3) The other party and any other entity or person from whom
discovery was sought may respond to the motion to compel discovery
within the time limits stated in paragraph (d)(4) of this section.
(d) Time limits. (1) Parties who wish to make discovery requests or
motions must serve their initial requests or motions within 25 days
after the date on which the judge issues an order to the respondent
agency to produce the agency file and response.
[[Page 28]]
(2) A party or nonparty must file a response to a discovery request
promptly, but not later than 20 days after the date of service of the
request or order of the judge. Any discovery requests following the
initial request must be served within 7 days of the date of service of
the prior response, unless the parties are otherwise directed.
Deposition witnesses must give their testimony at the time and place
stated in the request for deposition or in the subpoena, unless the
parties agree on another time or place.
(3) Any motion to depose a nonparty (along with a request for a
subpoena) must be submitted to the judge within the time limits stated
in paragraph (d)(1) of this section or as the judge otherwise directs.
(4) Any motion for an order to compel discovery must be filed with
the judge within 10 days of the date of service of objections or, if no
response is received, within 10 days after the time limit for response
has expired. Any pleading in opposition to a motion to compel discovery
must be filed with the judge within 10 days of the date of service of
the motion.
(5) Discovery must be completed within the time the judge
designates.
(e) Limits on the number of discovery requests. (1) Absent prior
approval by the judge, interrogatories served by parties upon another
party or a nonparty may not exceed 25 in number, including all discrete
subparts.
(2) Absent prior approval by the judge, parties may not take more
than 10 depositions.
(3) Requests to exceed the limitations set forth in paragraphs (a)
and (b) of this section may be granted at the discretion of the judge.
In considering such requests, the judge shall consider the factors
identified in Sec. 1201.72(d) of this part.
[68 FR 54651, Sept. 18, 2003]
Sec. 1201.74 Orders for discovery.
(a) Motion for an order compelling discovery. Motions for orders
compelling discovery and motions for the appearance of nonparties must
be filed with the judge in accordance with Sec. 1201.73(c)(2) and
(d)(4).
(b) Content of order. Any order issued will include, where
appropriate:
(1) A provision that the person to be deposed must be notified of
the time and place of the deposition;
(2) Any conditions or limits concerning the conduct or scope of the
proceedings or the subject matter that may be necessary to prevent undue
delay or to protect a party or other individual or entity from undue
expense, embarrassment, or oppression;
(3) Limits on the time for conducting depositions, answering written
interrogatories, or producing documentary evidence; and
(4) Other restrictions upon the discovery process that the judge
sets.
(c) Noncompliance. The judge may impose sanctions under Sec.
1201.43 of this part for failure to comply with an order compelling
discovery.
Sec. 1201.75 Taking depositions.
Depositions may be taken by any method agreed upon by the parties.
The person providing information is subject to penalties for intentional
false statements.
Subpoenas
Sec. 1201.81 Requests for subpoenas.
(a) Request. Parties who wish to obtain subpoenas that would require
the attendance and testimony of witnesses, or subpoenas that would
require the production of documents or other evidence under 5 U.S.C.
1204(b)(2)(A), should file their motions for those subpoenas with the
judge. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a
subpoena requiring the attendance and testimony of any individual
regardless of location and for the production of documentary or other
evidence from any place in the United States, any territory or
possession of the United States, the Commonwealth of Puerto Rico or the
District of Columbia. Subpoenas are not ordinarily required to obtain
the attendance of Federal employees as witnesses.
(b) Form. Parties requesting subpoenas must file their requests, in
writing, with the judge. Each request must identify specifically the
books, papers, or testimony desired.
[[Page 29]]
(c) Relevance. The request must be supported by a showing that the
evidence sought is relevant and that the scope of the request is
reasonable.
(d) Rulings. Any judge who does not have the authority to issue
subpoenas will refer the request to an official with authority to rule
on the request, with a recommendation for decision. The official to whom
the request is referred will rule on the request promptly. Judges who
have the authority to rule on these requests themselves will do so
directly.
[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30608, May 27, 2005]
Sec. 1201.82 Motions to quash subpoenas.
Any person to whom a subpoena is directed, or any party, may file a
motion to quash or limit the subpoena. The motion must be filed with the
judge, and it must include the reasons why compliance with the subpoena
should not be required or the reasons why the subpoena's scope should be
limited.
Sec. 1201.83 Serving subpoenas.
(a) Any person who is at least 18 years of age and who is not a
party to the appeal may serve a subpoena. The means prescribed by
applicable state law are sufficient. The party who requested the
subpoena, and to whom the subpoena has been issued, is responsible for
serving the subpoena.
(b) A subpoena directed to an individual outside the territorial
jurisdiction of any court of the United States may be served in the
manner described by the Federal Rules of Civil Procedure for service of
a subpoena in a foreign country.
Sec. 1201.84 Proof of service.
The person who has served the subpoena must certify that he or she
did so:
(a) By delivering it to the witness in person,
(b) By registered or certified mail, or
(c) By delivering the subpoena to a responsible person (named in the
document certifying the delivery) at the residence or place of business
(as appropriate) of the person for whom the subpoena was intended.
The document in which the party makes this certification also must
include a statement that the prescribed fees have been paid or offered.
Sec. 1201.85 Enforcing subpoenas.
(a) If a person who has been served with a Board subpoena fails or
refuses to comply with its terms, the party seeking compliance may file
a written motion for enforcement with the judge or make an oral motion
for enforcement while on the record at a hearing. That party must
present the document certifying that the subpoena was served and, except
where the witness was required to appear before the judge, must submit
an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV)
describing the failure or refusal to obey the subpoena. The Board, in
accordance with 5 U.S.C. 1204(c), may then ask the appropriate United
States district court to enforce the subpoena. If the person who has
failed or refused to comply with a Board subpoena is located in a
foreign country, the U.S. District Court for the District of Columbia
will have jurisdiction to enforce compliance, to the extent that a U.S.
court can assert jurisdiction over an individual in the foreign country.
(b) Upon application by the Special Counsel, the Board may seek
court enforcement of a subpoena issued by the Special Counsel in the
same manner in which it seeks enforcement of Board subpoenas, in
accordance with 5 U.S.C. 1212(b)(3).
Interlocutory Appeals
Sec. 1201.91 Explanation.
An interlocutory appeal is an appeal to the Board of a ruling made
by a judge during a proceeding. The judge may permit the appeal if he or
she determines that the issue presented in it is of such importance to
the proceeding that it requires the Board's immediate attention. Either
party may make a motion for certification of an interlocutory appeal. In
addition, the judge, on his or her own motion, may certify an
interlocutory appeal to the Board. If the appeal is certified, the Board
will decide the issue and the judge will act
[[Page 30]]
in accordance with the Board's decision.
Sec. 1201.92 Criteria for certifying interlocutory appeals.
The judge will certify a ruling for review only if the record shows
that:
(a) The ruling involves an important question of law or policy about
which there is substantial ground for difference of opinion; and
(b) An immediate ruling will materially advance the completion of
the proceeding, or the denial of an immediate ruling will cause undue
harm to a party or the public.
Sec. 1201.93 Procedures.
(a) Motion for certification. A party seeking the certification of
an interlocutory appeal must file a motion for certification within 10
days of the date of the ruling to be appealed. The motion must be filed
with the judge, and must state why certification is appropriate and what
the Board should do and why. The opposing party may file objections
within 10 days of the date of service of the motion, or within any other
time period that the judge may designate.
(b) Certification and review. The judge will grant or deny a motion
for certification within five days after receiving all pleadings or, if
no response is filed, within 10 days after receiving the motion. If the
judge grants the motion for certification, he or she will refer the
record to the Board. If the judge denies the motion, the party that
sought certification may raise the matter at issue in a petition for
review filed after the initial decision is issued, in accordance with
Sec. Sec. 1201.113 and 1201.114 of this part.
(c) Stay of hearing. The judge has the authority to proceed with or
to stay the hearing while an interlocutory appeal is pending with the
Board. Despite this authority, however, the Board may stay a hearing on
its own motion while an interlocutory appeal is pending with it.
Ex Parte Communications
Sec. 1201.101 Explanation and definitions.
(a) Explanation. An ex parte communication is an oral or written
communication between a decision-making official of the Board and an
interested party to a proceeding, when that communication is made
without providing the other parties to the appeal with a chance to
participate. Not all ex parte communications are prohibited. Those that
involve the merits of the case, or those that violate rules requiring
submissions to be in writing, are prohibited. Accordingly, interested
parties may ask about such matters as the status of a case, when it will
be heard, and methods of submitting evidence to the Board. Parties may
not ask about matters such as what defense they should use or whether
their evidence is adequate, and they may not make a submission orally if
that submission is required to be made in writing.
(b) Definitions for purposes of this section--(1) Interested party
includes:
(i) Any party or representative of a party involved in a proceeding
before the Board; and
(ii) Any other person who might be affected by the outcome of a
proceeding before the Board.
(2) Decision-making official means any judge, officer or other
employee of the Board designated to hear and decide cases.
Sec. 1201.102 Prohibition on ex parte communications.
Except as otherwise provided in Sec. 1201.41(c)(1) of this part, ex
parte communications that concern the merits of any matter before the
Board for adjudication, or that otherwise violate rules requiring
written submissions, are prohibited from the time the persons involved
know that the Board may consider the matter until the time the Board has
issued a final decision on the matter.
Sec. 1201.103 Placing communications in the record; sanctions.
(a) Any communication made in violation of Sec. 1201.102 of this
part will be made a part of the record. If the communication was oral, a
memorandum stating the substance of the discussion will be placed in the
record.
(b) If there has been a violation of Sec. 1201.102 of this part,
the judge or the Clerk of the Board, as appropriate, will notify the
parties in writing that the
[[Page 31]]
regulation has been violated, and will give the parties 10 days to file
a response.
(c) The following sanctions are available:
(1) Parties. The offending party may be required to show why, in the
interest of justice, the claim or motion should not be dismissed,
denied, or otherwise adversely affected.
(2) Other persons. The Board may invoke appropriate sanctions
against other offending parties.
[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30609, May 27, 2005]
Final Decisions
Sec. 1201.111 Initial decision by judge.
(a) The judge will prepare an initial decision after the record
closes, and will serve that decision on the Clerk of the Board, on the
Director of the Office of Personnel Management, and on all parties to
the appeal, including named parties, permissive intervenors, and
intervenors of right.
(b) Each initial decision will contain:
(1) Findings of fact and conclusions of law upon all the material
issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) An order making final disposition of the case, including
appropriate relief;
(4) A statement, if the appellant is the prevailing party, as to
whether interim relief is provided effective upon the date of the
decision, pending the outcome of any petition for review filed by
another party under subpart C of this part;
(5) The date upon which the decision will become final (a date that,
for purposes of this section, is 35 days after issuance); and
(6) A statement of any further process available, including, as
appropriate, a petition for review under Sec. 1201.114 of this part, a
petition for enforcement under Sec. 1201.182, a motion for attorney
fees under Sec. 1201.203, a motion to initiate an addendum proceeding
for consequential damages or compensatory damages under Sec. 1201.204,
and a petition for judicial review.
(c) Interim relief. (1) Under 5 U.S.C. 7701(b)(2), if the appellant
is the prevailing party, the initial decision will provide appropriate
interim relief to the appellant effective upon the date of the initial
decision and remaining in effect until the date of the final order of
the Board on any petition for review, unless the judge determines that
the granting of interim relief is not appropriate. The agency may
decline to return the appellant to his or her place of employment if it
determines that the return or presence of the appellant will be unduly
disruptive to the work environment. However, pay and benefits must be
provided.
(2) An initial decision that orders interim relief shall include a
section which will provide the appellant specific notice that the relief
ordered in the decision must be provided by the agency effective as of
the date of the decision if a party files a petition for review. If the
relief ordered in the initial decision requires the agency to effect an
appointment, the notice required by this section will so state, will
specify the title and grade of the appointment, and will specifically
advise the appellant of his right to receive pay and benefits while any
petition for review is pending, even if the agency determines that the
appellant's return to or presence in the workplace would be unduly
disruptive.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997; 63
FR 41179, Aug. 3, 1998; 64 FR 27900, May 24, 1999]
Sec. 1201.112 Jurisdiction of judge.
(a) After issuing the initial decision, the judge will retain
jurisdiction over a case only to the extent necessary to:
(1) Correct the transcript; when one is obtained;
(2) Rule on a request by the appellant for attorney fees,
consequential damages, or compensatory damages under subpart H of this
part;
(3) Process any petition for enforcement filed under subpart F of
this part;
(4) Vacate an initial decision before that decision becomes final
under Sec. 1201.113 in order to accept a settlement agreement into the
record.
[[Page 32]]
(b) Nothing is this section affects the time limits prescribed in
Sec. 1201.113 regarding the finality of an initial decision or the time
allowed for filing a petition for review.
[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997; 70
FR 30609, May 27, 2005]
Sec. 1201.113 Finality of decision.
The initial decision of the judge will become final 35 days after
issuance. Initial decisions are not precedential.
(a) Exceptions. The initial decision will not become final if any
party files a petition for review within the time limit for filing
specified in Sec. 1201.114 of this part, or if the Board reopens the
case on its own motion.
(b) Petition for review denied. If the Board denies all petitions
for review, the initial decision will become final when the Board issues
its last decision denying a petition for review.
(c) Petition for review granted or case reopened. If the Board
grants a petition for review or a cross petition for review, or reopens
or dismisses a case, the decision of the Board is final if it disposes
of the entire action.
(d) Extensions. The Board may extend the time limit for filing a
petition for good cause shown as specified in Sec. 1201.114 of this
part.
(e) Exhaustion. Administrative remedies are exhausted when a
decision becomes final in accordance with this section.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997]
Subpart C_Petitions for Review of Initial Decisions
Sec. 1201.114 Filing petition and cross petition for review.
(a) Who may file. Any party to the proceeding, the Director of the
Office of Personnel Management (OPM), or the Special Counsel may file a
petition for review. The Director of OPM may request review only if he
or she believes that the decision is erroneous and will have a
substantial impact on any civil service law, rule, or regulation under
OPM's jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board
must contain the signature of the party or of the party's designated
representative.
(b) Cross petition for review. If a party, the Director of OPM, or
the Special Counsel files a timely petition for review, any other party,
the Director of OPM, or the Special Counsel may file a timely cross
petition for review. The Board normally will consider only issues raised
in a timely filed petition for review or in a timely filed cross
petition for review.
(c) Place for filing. A petition for review, cross petition for
review, responses to those petitions, and all motions and pleadings
associated with them must be filed with the Clerk of the Merit Systems
Protection Board, Washington, DC 20419, by commercial or personal
delivery, by facsimile, by mail, or by electronic filing in accordance
with Sec. 1201.14.
(d) Time for filing. Any petition for review must be filed within 35
days after the date of issuance of the initial decision or, if the
petitioner shows that the initial decision was received more than 5 days
after the date of issuance, within 30 days after the date the petitioner
received the initial decision. A cross petition for review must be filed
within 25 days of the date of service of the petition for review. Any
response to a petition for review or to a cross petition for review must
be filed within 25 days after the date of service of the petition or
cross petition.
(e) Extension of time to file. The Board will grant a motion for
extension of time to file a petition for review, a cross petition, or a
response only if the party submitting the motion shows good cause.
Motions for extensions must be filed with the Clerk of the Board before
the date on which the petition or other pleading is due. The Board, in
its discretion, may grant or deny those motions without providing the
other parties the opportunity to comment on them. A motion for an
extension must be accompanied by an affidavit or sworn statement under
28 U.S.C. 1746. (See appendix IV to part 1201.) The affidavit or sworn
statement must include a specific and detailed description of the
circumstances alleged to constitute good cause, and it should
[[Page 33]]
be accompanied by any available documentation or other evidence
supporting the matters asserted.
(f) Late filings. Any petition for review, cross petition for
review, or response that is filed late must be accompanied by a motion
that shows good cause for the untimely filing, unless the Board has
specifically granted an extension of time under paragraph (e) of this
section, or unless a motion for extension is pending before the Board.
The motion must be accompanied by an affidavit or sworn statement under
28 U.S.C. 1746. (See appendix IV to part 1201.) The affidavit or sworn
statement must include:
(1) The reasons for failing to request an extension before the
deadline for the submission; and
(2) A specific and detailed description of the circumstances causing
the late filing, accompanied by supporting documentation or other
evidence.
Any response to the motion may be included in the response to the
petition for review, the cross petition for review, or the response to
the cross petition for review. The response will not extend the time
provided by paragraph (d) of this section to file a cross petition for
review or to respond to the petition or cross petition. In the absence
of a motion, the Board may, in its discretion, determine on the basis of
the existing record whether there was good cause for the untimely
filing, or it may provide the party that submitted the document with an
opportunity to show why it should not be dismissed or excluded as
untimely.
(g) Intervention--(1) By Director of OPM. The Director of OPM may
intervene in a case before the Board under the standards stated in 5
U.S.C. 7701(d). The notice of intervention is timely if it is filed with
the Clerk of the Board within 45 days of the date the petition for
review was filed. If the Director requests additional time for filing a
brief on intervention, the Board may, in its discretion, grant the
request. A party may file a response to the Director's brief within 15
days of the date of service of that brief. The Director must serve the
notice of intervention and the brief on all parties.
(2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special
Counsel may intervene as a matter of right, except as provided in
paragraph (g)(2)(ii) of this section. The notice of intervention is
timely if it is filed with the Clerk of the Board within 45 days of the
date the petition for review was filed. If the Special Counsel requests
additional time for filing a brief on intervention, the Board may, in
its discretion, grant the request. A party may file a response to the
Special Counsel's brief within 15 days of the date of service. The
Special Counsel must serve the notice of intervention and the brief on
all parties.
(ii) The Special Counsel may not intervene in an action brought by
an individual under 5 U.S.C. 1221, or in an appeal brought by an
individual under 5 U.S.C. 7701, without the consent of that individual.
The Special Counsel must present evidence that the individual has
consented to the intervention at the time the motion to intervene is
filed.
(3) Permissive intervenors. Any person, organization or agency, by
motion made in a petition for review, may ask for permission to
intervene. The motion must state in detail the reasons why the person,
organization or agency should be permitted to intervene. A motion for
permission to intervene will be granted if the requester shows that he
or she will be affected directly by the outcome of the proceeding. Any
person alleged to have committed a prohibited personnel practice under 5
U.S.C. 2302(b) may ask for permission to intervene.
(h) Service. A party submitting a pleading must serve a copy of it
on each party and on each representative, as required by paragraph
(b)(2) of Sec. 1201.26.
(i) Closing the record. The record closes on expiration of the
period for filing the response to the petition for review, or to the
cross petition for review, or to the brief on intervention, if any, or
on any other date the Board sets for this purpose. Once the record
closes, no additional evidence or argument will be accepted unless the
party submitting it shows that the evidence
[[Page 34]]
was not readily available before the record closed.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 62
FR 59992, Nov. 6, 1997; 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept.
27, 2004]
Sec. 1201.115 Contents of petition for review.
(a) The petition for review must state objections to the initial
decision that are supported by references to applicable laws or
regulations and by specific references to the record.
(b)(1) If the appellant was the prevailing party in the initial
decision, and the decision granted the appellant interim relief, any
petition for review or cross petition for review filed by the agency
must be accompanied by a certification that the agency has complied with
the interim relief order either by providing the required interim relief
or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(2) If the appellant challenges the agency's certification of
compliance with the interim relief order, the Board will issue an order
affording the agency the opportunity to submit evidence of its
compliance. The appellant may respond to the agency's submission of
evidence within 10 days after the date of service of the submission.
(3) If an appellant or an intervenor files a petition or cross
petition for review of an initial decision ordering interim relief and
such petition includes a challenge to the agency's compliance with the
interim relief order, upon order of the Board the agency must submit
evidence that it has provided the interim relief required or that it has
satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(4) Failure by an agency to provide the certification required by
paragraph (b)(1) of this section with its petition or cross petition for
review, or to provide evidence of compliance in response to a Board
order in accordance with paragraph (b)(2) or (b)(3) of this section, may
result in the dismissal of the agency's petition or cross petition for
review.
(c) Nothing in paragraph (b) of this section shall be construed to
require any payment of back pay for the period preceding the date of the
judge's initial decision or attorney fees before the decision of the
Board becomes final.
(d) The Board, after providing the other parties with an opportunity
to respond, may grant a petition for review when it is established that:
(1) New and material evidence is available that, despite due
diligence, was not available when the record closed; or
(2) The decision of the judge is based on an erroneous
interpretation of statute or regulation.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 30863, June 16, 1994;
62 FR 43631, Aug. 15, 1997; 64 FR 27900, May 24, 1999]
Sec. 1201.116 Appellant requests for enforcement of interim relief.
(a) Before a final decision is issued. If the agency files a
petition for review or a cross petition for review and has not provided
required interim relief, the appellant may request dismissal of the
agency's petition. Any such request must be filed with the Clerk of the
Board within 25 days of the date of service of the agency's petition. A
copy of the response must be served on the agency at the same time it is
filed with the Board. The agency may respond with evidence and argument
to the appellant's request to dismiss within 15 days of the date of
service of the request. If the appellant files a motion to dismiss
beyond the time limit, the Board will dismiss the motion as untimely
unless the appellant shows that it is based on information not readily
available before the close of the time limit.
(b) After a final decision is issued. If the appellant is not the
prevailing party in the final Board order, and if the appellant believes
that the agency has not provided full interim relief, the appellant may
file an enforcement petition with the regional office under Sec.
1201.182. The appellant must file this petition within 20 days of
learning of the agency's failure to provide full interim relief. If the
appellant prevails in the final Board order, then any interim relief
enforcement motion filed will be treated as a motion for enforcement of
the final decision. Petitions under this subsection will be processed
under Sec. 1201.183.
[59 FR 30864, June 16, 1994]
[[Page 35]]
Sec. 1201.117 Procedures for review or reopening.
(a) In any case that is reopened or reviewed, the Board may:
(1) Issue a single decision that denies or grants a petition for
review, reopens the appeal, and decides the case;
(2) Hear oral arguments;
(3) Require that briefs be filed;
(4) Remand the appeal so that the judge may take further testimony
or evidence or make further findings or conclusions; or
(5) Take any other action necessary for final disposition of the
case.
(b) The Board may affirm, reverse, modify, or vacate the decision of
the judge, in whole or in part. Where appropriate, the Board will issue
a final decision and order a date for compliance with that decision.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
Sec. 1201.118 Board reopening of case and reconsideration of initial decision.
The Board may reopen an appeal and reconsider a decision of a judge
on its own motion at any time, regardless of any other provisions of
this part.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
Sec. 1201.119 OPM petition for reconsideration.
(a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office of
Personnel Management may file a petition for reconsideration of a Board
final order if he or she determines:
(1) That the Board erred in interpreting a civil service law, rule,
or regulation affecting personnel management, and
(2) That the Board's decision will have a substantial impact on a
civil service law, rule, regulation, or policy directive.
(b) Time limit. The Director must file the petition for
reconsideration within 35 days after the date of service of the Board's
final order.
(c) Briefs. After the petition is filed, the Board will make the
official record relating to the petition for reconsideration available
to the Director for review. The Director's brief in support of the
petition for reconsideration must be filed within 20 days after the
Board makes the record available for review. Any party's opposition to
the petition for reconsideration must be filed within 25 days from the
date of service of the Director's brief.
(d) Stays. If the Director of OPM files a petition for
reconsideration, he or she also may ask the Board to stay its final
order. An application for a stay, with a supporting memorandum, must be
filed at the same time as the petition for reconsideration.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
Sec. 1201.120 Judicial review.
Any employee or applicant for employment who is adversely affected
by a final order or decision of the Board under the provisions of 5
U.S.C. 7703 may obtain judicial review in the United States Court of
Appeals for the Federal Circuit. As Sec. 1201.175 of this part
provides, an appropriate United States district court has jurisdiction
over a request for judicial review of cases involving the kinds of
discrimination issues described in 5 U.S.C. 7702.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
Subpart D_Procedures for Original Jurisdiction Cases
Source: 62 FR 48451, Sept. 16, 1997, unless otherwise noted.
General
Sec. 1201.121 Scope of jurisdiction; application of subparts B, F, and H.
(a) Scope. The Board has original jurisdiction over complaints filed
by the Special Counsel seeking corrective or disciplinary action
(including complaints alleging a violation of the Hatch Political
Activities Act), requests by the Special Counsel for stays of certain
personnel actions, proposed agency actions against administrative law
judges, and removals of career appointees from the Senior Executive
Service for performance reasons.
(b) Application of subparts B, F, and H. (1) Except as otherwise
expressly provided by this subpart, the regulations in subpart B of this
part applicable to
[[Page 36]]
appellate case processing also apply to original jurisdiction cases
processed under this subpart.
(2) Subpart F of this part applies to enforcement proceedings in
connection with Special Counsel complaints and stay requests, and agency
actions against administrative law judges, decided under this subpart.
(3) Subpart H of this part applies to requests for attorney fees or
compensatory damages in connection with Special Counsel corrective and
disciplinary action complaints, and agency actions against
administrative law judges, decided under this subpart. Subpart H of this
part also applies to requests for consequential damages in connection
with Special Counsel corrective action complaints decided under this
subpart.
(c) The provisions of this subpart do not apply to appeals alleging
non-compliance with the provisions of chapter 43 of title 38 of the
United States Code relating to the employment or reemployment rights or
benefits to which a person is entitled after service in the uniformed
services, in which the Special Counsel appears as the designated
representative of the appellant. Such appeals are governed by part 1208
of this title.
[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997;
65 FR 5409, Feb. 4, 2000]
Special Counsel Disciplinary Actions
Sec. 1201.122 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking
disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint
alleging a violation of the Hatch Political Activities Act) must be
filed with the Clerk of the Board.
(b) Initial filing and service. The Special Counsel must file two
copies of the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing each party or
the party's representative. The certificate of service must show the
last known address, telephone number, and facsimile number of each party
or representative. The Special Counsel must serve a copy of the
complaint on each party or the party's representative, as shown on the
certificate of service. The initial filing in a complaint may not be
submitted in electronic form.
(c) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(d) Method of filing and service. Filing may be by mail, by
facsimile, or by personal or commercial delivery to the Clerk of the
Board. Service may be by mail, by facsimile, or by personal or
commercial delivery to each party or the party's representative, as
shown on the certificate of service.
(e) Electronic filing. All pleadings, other than the complaint, may
be filed and served in electronic form at the Board's e-Appeal site
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14
are satisfied.
[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003;
69 FR 57630, Sept. 27, 2004]
Sec. 1201.123 Contents of complaint.
(a) If the Special Counsel determines that the Board should take any
of the actions listed below, he or she must file a written complaint in
accordance with Sec. 1201.122 of this part, stating with particularity
any alleged violations of law or regulation, along with the supporting
facts.
(1) Action to discipline an employee alleged to have committed a
prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
(2) Action to discipline an employee alleged to have violated any
law, rule, or regulation, or to have engaged in prohibited conduct,
within the jurisdiction of the Special Counsel under 5 U.S.C. 1216
(including an alleged violation by a Federal or District of Columbia
government employee involving political activity prohibited under 5
U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);
[[Page 37]]
(3) Action to discipline a State or local government employee for an
alleged violation involving prohibited political activity, 5 U.S.C.
1505; or
(4) Action to discipline an employee for an alleged knowing and
willful refusal or failure to comply with an order of the Board, 5
U.S.C. 1215(a)(1)(C).
(b) The administrative law judge to whom the complaint is assigned
may order the Special Counsel and the responding party to file briefs,
memoranda, or both in any disciplinary action complaint the Special
Counsel brings before the Board.
Sec. 1201.124 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board
shall furnish a copy of the applicable Board regulations to each party
that is not a Federal, State, or local government agency and shall
inform such a party of the party's rights under paragraph (b) of this
section and the requirements regarding the timeliness and content of an
answer to the Special Counsel's complaint under paragraphs (c) and (d),
respectively, of this section.
(b) Rights. When the Special Counsel files a complaint proposing a
disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the
employee has the right:
(1) To file an answer, supported by affidavits and documentary
evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date,
in which the administrative law judge states the reasons for his or her
decision; and
(5) To a copy of the administrative law judge's decision and
subsequent final decision by the Board, if any.
(c) Filing and default. A party named in a Special Counsel
disciplinary action complaint may file an answer with the Clerk of the
Board within 35 days of the date of service of the complaint. If a party
fails to answer, the failure may constitute waiver of the right to
contest the allegations in the complaint. Unanswered allegations may be
considered admitted and may form the basis of the administrative law
judge's decision.
(d) Content. An answer must contain a specific denial, admission, or
explanation of each fact alleged in the complaint. If the respondent has
no knowledge of a fact, he or she must say so. The respondent may
include statements of fact and appropriate documentation to support each
denial or defense. Allegations that are unanswered or admitted in the
answer may be considered true.
Sec. 1201.125 Administrative law judge.
(a) An administrative law judge will hear a disciplinary action
complaint brought by the Special Counsel.
(b) Except as provided in paragraph (c)(1) of this section, the
administrative law judge will issue an initial decision on the complaint
pursuant to 5 U.S.C. 557. The applicable provisions of Sec. Sec.
1201.111, 1201.112, and 1201.113 of this part govern the issuance of
initial decisions, the jurisdiction of the judge, and the finality of
initial decisions. The initial decision will be subject to the
procedures for a petition for review by the Board under subpart C of
this part.
(c)(1) In a Special Counsel complaint seeking disciplinary action
against a Federal or District of Columbia government employee for a
violation of 5 U.S.C. 7323 or 7324, where the administrative law judge
finds that the violation does not warrant removal, the administrative
law judge will issue a recommended decision to the Board in accordance
with 5 U.S.C. 557.
(2) The parties may file with the Clerk of the Board any exceptions
they may have to the recommended decision of the administrative law
judge. Those exceptions must be filed within 35 days after the date of
service of the recommended decision or, if the filing party shows that
the recommended decision was received more than 5 days after the date of
service, within 30 days after the date the filing party received the
recommended decision.
(3) The parties may file replies to exceptions within 25 days after
the date of service of the exceptions, as that date is determined by the
certificate of service.
(4) No additional evidence will be accepted with a party's
exceptions or with a reply to exceptions unless the
[[Page 38]]
party submitting it shows that the evidence was not readily available
before the administrative law judge closed the record.
(5) The Board will consider the recommended decision of the
administrative law judge, together with any exceptions and replies to
exceptions filed by the parties, and will issue a final written
decision.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998;
70 FR 30609, May 27, 2005]
Sec. 1201.126 Final decisions.
(a) In any action to discipline an employee, except as provided in
paragraphs (b) or (c) of this section, the administrative law judge, or
the Board on petition for review, may order a removal, a reduction in
grade, a debarment (not to exceed five years), a suspension, a
reprimand, or an assessment of civil penalty not to exceed $1,100. 5
U.S.C. 1215(a)(3).
(b) In any action in which the administrative law judge, or the
Board on petition for review, finds under 5 U.S.C. 1505 that a State or
local government employee has violated the Hatch Political Activities
Act and that the employee's removal is warranted, the administrative law
judge, or the Board on petition for review, will issue a written
decision notifying the employing agency and the employee that the
employee must be removed and not reappointed within 18 months of the
date of the decision. If the agency fails to remove the employee, or if
it reappoints the employee within 18 months, the administrative law
judge, or the Board on petition for review, may order the Federal entity
administering loans or grants to the agency to withhold funds from the
agency as provided under 5 U.S.C. 1506.
(c) In any Hatch Act action in which the administrative law judge,
or the Board on petition for review, finds that a Federal or District of
Columbia government employee has violated 5 U.S.C. 7323 or 7324 and that
the violation warrants removal, the administrative law judge, or the
Board on petition for review, will issue a written decision ordering the
employee's removal. If the administrative law judge finds a violation of
5 U.S.C. 7323 or 7324 and determines that removal is not warranted, the
judge will issue a recommended decision under Sec. 1201.125(c)(1) of
this part. If the Board finds a violation of 5 U.S.C. 7323 or 7324 and
determines by unanimous vote that the violation does not warrant
removal, it will impose instead a penalty of not less than 30 days
suspension without pay. If the Board finds by majority vote that the
violation warrants removal, it will order the employee's removal.
[62 FR 48451, Sept. 16, 1997, as amended at 70 FR 30609, May 27, 2005]
Sec. 1201.127 Judicial review.
(a) An employee subject to a final Board decision imposing
disciplinary action under 5 U.S.C. 1215 may obtain judicial review of
the decision in the United States Court of Appeals for the Federal
Circuit, except as provided under paragraph (b) of this section. 5
U.S.C. 1215(a)(4).
(b) A party aggrieved by a determination or order of the Board under
5 U.S.C. 1505 (governing alleged violations of the Hatch Political
Activities Act by State or local government employees) may obtain
judicial review in an appropriate United States district court. 5 U.S.C.
1508.
Special Counsel Corrective Actions
Sec. 1201.128 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking corrective
action under 5 U.S.C. 1214 must be filed with the Clerk of the Board.
After the complaint has been assigned to a judge, subsequent pleadings
must be filed with the Board office where the judge is located.
(b) Initial filing and service. The Special Counsel must file two
copies of the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the respondent
agency or the agency's representative, and each person on whose behalf
the corrective action is brought. The certificate of service must show
the last known address, telephone number, and facsimile number of the
agency or its representative, and each person on whose behalf the
[[Page 39]]
corrective action is brought. The Special Counsel must serve a copy of
the complaint on the agency or its representative, and each person on
whose behalf the corrective action is brought, as shown on the
certificate of service. The initial filing in a complaint may not be
submitted in electronic form.
(c) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(d) Method of filing and service. A filing may be by mail, by
facsimile, or by personal or commercial delivery to the office
determined under paragraph (a) of this section. Service may be by mail,
by facsimile, or by personal or commercial delivery to each party or the
party's representative, as shown on the certificate of service.
(e) Electronic filing. All pleadings, other than the complaint, may
be filed and served in electronic form at the Board's e-Appeal site
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14
are satisfied.
[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003;
69 FR 57630, Sept. 27, 2004]
Sec. 1201.129 Contents of complaint.
(a) If the Special Counsel determines that the Board should take
action to require an agency to correct a prohibited personnel practice
(or a pattern of prohibited personnel practices) under 5 U.S.C.
1214(b)(4), he or she must file a written complaint in accordance with
Sec. 1201.128 of this part, stating with particularity any alleged
violations of law or regulation, along with the supporting facts.
(b) If the Special Counsel files a corrective action with the Board
on behalf of an employee, former employee, or applicant for employment
who has sought corrective action from the Board directly under 5 U.S.C.
1214(a)(3), the Special Counsel must provide evidence that the employee,
former employee, or applicant has consented to the Special Counsel's
seeking corrective action. 5 U.S.C. 1214(a)(4).
(c) The judge to whom the complaint is assigned may order the
Special Counsel and the respondent agency to file briefs, memoranda, or
both in any corrective action complaint the Special Counsel brings
before the Board.
Sec. 1201.130 Rights; answer to complaint.
(a) Rights. (1) A person on whose behalf the Special Counsel brings
a corrective action has a right to request intervention in the
proceeding in accordance with the regulations in Sec. 1201.34 of this
part. The Clerk of the Board shall notify each such person of this
right.
(2) When the Special Counsel files a complaint seeking corrective
action, the judge to whom the complaint is assigned shall provide an
opportunity for oral or written comments by the Special Counsel, the
agency involved, and the Office of Personnel Management. 5 U.S.C.
1214(b)(3)(A).
(3) The judge to whom the complaint is assigned shall provide a
person alleged to have been the subject of any prohibited personnel
practice alleged in the complaint the opportunity to make written
comments, regardless of whether that person has requested and been
granted intervenor status. 5 U.S.C. 1214(b)(3)(B).
(b) Filing and default. An agency named as respondent in a Special
Counsel corrective action complaint may file an answer with the judge to
whom the complaint is assigned within 35 days of the date of service of
the complaint. If the agency fails to answer, the failure may constitute
waiver of the right to contest the allegations in the complaint.
Unanswered allegations may be considered admitted and may form the basis
of the judge's decision.
(c) Content. An answer must contain a specific denial, admission, or
explanation of each fact alleged in the complaint. If the respondent
agency has no knowledge of a fact, it must say so. The respondent may
include statements of fact and appropriate documentation to support each
denial or defense. Allegations that are unanswered
[[Page 40]]
or admitted in the answer may be considered true.
Sec. 1201.131 Judge.
(a) The Board will assign a corrective action complaint brought by
the Special Counsel under this subpart to a judge, as defined at Sec.
1201.4(a) of this part, for hearing.
(b) The judge will issue an initial decision on the complaint
pursuant to 5 U.S.C. 557. The applicable provisions of Sec. Sec.
1201.111, 1201.112, and 1201.113 of this part govern the issuance of
initial decisions, the jurisdiction of the judge, and the finality of
initial decisions. The initial decision will be subject to the
procedures for a petition for review by the Board under subpart C of
this part.
[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]
Sec. 1201.132 Final decisions.
(a) In any Special Counsel complaint seeking corrective action based
on an allegation that a prohibited personnel practice has been
committed, the judge, or the Board on petition for review, may order
appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).
(b) (1) Subject to the provisions of paragraph (b)(2) of this
section, in any case involving an alleged prohibited personnel practice
described in 5 U.S.C. 2302(b)(8), the judge, or the Board on petition
for review, will order appropriate corrective action if the Special
Counsel demonstrates that a disclosure described under 5 U.S.C.
2302(b)(8) was a contributing factor in the personnel action that was
taken or will be taken against the individual.
(2) Corrective action under paragraph (b)(1) of this section may not
be ordered if the agency demonstrates by clear and convincing evidence
that it would have taken the same personnel action in the absence of
such disclosure. 5 U.S.C. 1214(b)(4)(B).
Sec. 1201.133 Judicial review.
An employee, former employee, or applicant for employment who is
adversely affected by a final Board decision on a corrective action
complaint brought by the Special Counsel may obtain judicial review of
the decision in the United States Court of Appeals for the Federal
Circuit. 5 U.S.C. 1214(c).
Special Counsel Requests for Stays
Sec. 1201.134 Deciding official; filing stay request; serving documents on parties.
(a) Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), the
Special Counsel may seek to stay a personnel action if the Special
Counsel determines that there are reasonable grounds to believe that the
action was taken or will be taken as a result of a prohibited personnel
practice.
(b) Deciding official. Any member of the Board may delegate to an
administrative law judge the authority to decide a Special Counsel
request for an initial stay. The Board may delegate to a member of the
Board the authority to rule on any matter related to a stay that has
been granted to the Special Counsel, including a motion for extension or
termination of the stay.
(c) Place of filing. A Special Counsel stay request must be filed
with the Clerk of the Board.
(d) Initial filing and service. The Special Counsel must file two
copies of the request, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the respondent
agency or the agency's representative. The certificate of service must
show the last known address, telephone number, and facsimile number of
the agency or its representative. The Special Counsel must serve a copy
of the request on the agency or its representative, as shown on the
certificate of service. The initial filing in a request for a stay may
not be submitted in electronic form.
(e) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(f) Method of filing and service. A filing may be by mail, by
facsimile, or by personal or commercial delivery to the Clerk of the
Board. Service may be by
[[Page 41]]
mail, by facsimile, or by personal or commercial delivery to each party
or the party's representative, as shown on the certificate of service.
(g) Electronic filing. All pleadings, other than the complaint, may
be filed and served in electronic form at the Board's e-Appeal site
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14
are satisfied.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998;
68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004]
Sec. 1201.135 Contents of stay request.
The Special Counsel, or that official's representative, must sign
each stay request, and must include the following information in the
request:
(a) The names of the parties;
(b) The agency and officials involved;
(c) The nature of the action to be stayed;
(d) A concise statement of facts justifying the charge that the
personnel action was or will be the result of a prohibited personnel
practice; and
(e) The laws or regulations that were violated, or that will be
violated if the stay is not issued.
Sec. 1201.136 Action on stay request.
(a) Initial stay. A Special Counsel request for an initial stay of
45 days will be granted within three working days after the filing of
the request, unless, under the facts and circumstances, the requested
stay would not be appropriate. Unless the stay is denied within the 3-
day period, it is considered granted by operation of law.
(b) Extension of stay. Upon the Special Counsel's request, a stay
granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate
period of time, but only after providing the agency with an opportunity
to comment on the request. Any request for an extension of a stay under
5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no
later than 15 days before the expiration date of the stay. A brief
describing the facts and any relevant legal authority that should be
considered must accompany the request for extension. Any response by the
agency must be received by the Board no later than 8 days before the
expiration date of the stay.
(c) Evidence of compliance with a stay. Within five working days
from the date of a stay order or an order extending a stay, the agency
ordered to stay a personnel action must file evidence setting forth
facts and circumstances demonstrating compliance with the order.
(d) Termination of stay. A stay may be terminated at any time,
except that a stay may not be terminated:
(1) On the motion of an agency, or on the deciding official's own
motion, without first providing notice and opportunity for oral or
written comments to the Special Counsel and the individual on whose
behalf the stay was ordered; or
(2) On the motion of the Special Counsel without first providing
notice and opportunity for oral or written comments to the individual on
whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).
(e) Additional information. At any time, where appropriate, the
Special Counsel, the agency, or both may be required to appear and
present further information or explanation regarding a request for a
stay, to file supplemental briefs or memoranda, or to supply factual
information needed to make a decision regarding a stay.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]
Actions Against Administrative Law Judges
Sec. 1201.137 Covered actions; filing complaint; serving documents on parties.
(a) Covered actions. The jurisdiction of the Board under 5 U.S.C.
7521 and this subpart with respect to actions against administrative law
judges is limited to proposals by an agency to take any of the following
actions against an administrative law judge:
(1) Removal;
(2) Suspension;
(3) Reduction in grade;
(4) Reduction in pay; and
(5) Furlough of 30 days or less.
(b) Place of filing. To initiate an action against an administrative
law judge under this subpart, an agency must file a complaint with the
Clerk of the Board.
[[Page 42]]
(c) Initial filing and service. The agency must file two copies of
the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing each party or
the party's representative. The certificate of service must show the
last known address, telephone number, and facsimile number of each party
or representative. The agency must serve a copy of the complaint on each
party or the party's representative, as shown on the certificate of
service. The initial filing in a complaint may not be submitted in
electronic form.
(d) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(e) Method of filing and service. A filing may be by mail, by
facsimile, or by personal or commercial delivery to the Clerk of the
Board. Service may be by mail, by facsimile, or by commercial or
personal delivery to each party or the party's representative, as shown
on the certificate of service.
(f) Electronic filing. All pleadings, other than the complaint, may
be filed and served in electronic form at the Board's e-Appeal site
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14
are satisfied.
[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct, 20, 2003;
69 FR 57630, Sept. 27, 2004]
Sec. 1201.138 Contents of complaint.
A complaint filed under this section must describe with
particularity the facts that support the proposed agency action.
Sec. 1201.139 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board
shall furnish a copy of the applicable Board regulations to each
administrative law judge named as a respondent in the complaint and
shall inform each respondent of his or her rights under paragraph (b) of
this section and the requirements regarding the timeliness and content
of an answer to the agency's complaint under paragraphs (c) and (d),
respectively, of this section.
(b) Rights. When an agency files a complaint proposing an action
against an administrative law judge under 5 U.S.C. 7521 and this
subpart, the administrative law judge has the right:
(1) To file an answer, supported by affidavits and documentary
evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date,
in which the administrative law judge states the reasons for his or her
decision; and
(5) To a copy of the administrative law judge's decision and
subsequent final decision by the Board, if any.
(c) Filing and default. A respondent named in an agency complaint
may file an answer with the Clerk of the Board within 35 days of the
date of service of the complaint. If a respondent fails to answer, the
failure may constitute waiver of the right to contest the allegations in
the complaint. Unanswered allegations may be considered admitted and may
form the basis of the administrative law judge's decision.
(d) Content. An answer must contain a specific denial, admission, or
explanation of each fact alleged in the complaint. If the respondent has
no knowledge of a fact, he or she must say so. The respondent may
include statements of fact and appropriate documentation to support each
denial or defense. Allegations that are unanswered or admitted in the
answer may be considered true.
Sec. 1201.140 Judge; requirement for finding of good cause.
(a) Judge. (1) An administrative law judge will hear an action
brought by an employing agency under this subpart against a respondent
administrative law judge.
(2) The judge will issue an initial decision pursuant to 5 U.S.C.
557. The applicable provisions of Sec. Sec. 1201.111, 1201.112, and
1201.113 of this part govern
[[Page 43]]
the issuance of initial decisions, the jurisdiction of the judge, and
the finality of initial decisions. The initial decision will be subject
to the procedures for a petition for review by the Board under subpart C
of this part.
(b) Requirement for finding of good cause. A decision on a proposed
agency action under this subpart against an administrative law judge
will authorize the agency to take a disciplinary action, and will
specify the penalty to be imposed, only after a finding of good cause as
required by 5 U.S.C. 7521 has been made.
Sec. 1201.141 Judicial review.
An administrative law judge subject to a final Board decision
authorizing a proposed agency action under 5 U.S.C. 7521 may obtain
judicial review of the decision in the United States Court of Appeals
for the Federal Circuit. 5 U.S.C. 7703.
Sec. 1201.142 Actions filed by administrative law judges.
An administrative law judge who alleges a constructive removal or
other action by an agency in violation of 5 U.S.C. 7521 may file a
complaint with the Board under this subpart. The filing and serving
requirements of 5 CFR 1201.37 apply. Such complaints shall be
adjudicated in the same manner as agency complaints under this subpart.
[71 FR 34232, June 14, 2006]
Removal From the Senior Executive Service
Sec. 1201.143 Right to hearing; filing complaint; serving documents on parties.
(a) Right to hearing. If an agency proposes to remove a career
appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2)
and 5 CFR 359.502, and to place that employee in another civil service
position, the appointee may request an informal hearing before an
official designated by the Board. Under 5 CFR 359.502, the agency
proposing the removal must provide the appointee 30 days advance notice
and must advise the appointee of the right to request a hearing. If the
appointee files the request at least 15 days before the effective date
of the proposed removal, the request will be granted.
(b) Place of filing. A request for an informal hearing under
paragraph (a) of this section must be filed with the Clerk of the Board.
After the request has been assigned to a judge, subsequent pleadings
must be filed with the Board office where the judge is located.
(c) Initial filing and service. The appointee must file two copies
of the request, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the agency
proposing the appointee's removal or the agency's representative. The
certificate of service must show the last known address, telephone
number, and facsimile number of the agency or its representative. The
appointee must serve a copy of the request on the agency or its
representative, as shown on the certificate of service. The initial
filing may not be submitted in electronic form.
(d) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(e) Method of filing and service. A filing may be by mail, by
facsimile, or by personal or commercial delivery, to the office
determined under paragraph (b) of this section. Service may be by mail,
by facsimile, or by personal or commercial delivery to each party or the
party's representative, as shown on the certificate of service.
(f) Electronic filing. All pleadings, other than the complaint, may
be filed and served in electronic form at the Board's e-Appeal site
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14
are satisfied.
[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59864, Oct, 20, 2003;
69 FR 57630, Sept. 27, 2004]
[[Page 44]]
Sec. 1201.144 Hearing procedures; referring the record.
(a) The official designated to hold an informal hearing requested by
a career appointee whose removal from the Senior Executive Service has
been proposed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a
judge, as defined at Sec. 1201.4(a) of this part.
(b) The appointee, the appointee's representative, or both may
appear and present arguments in an informal hearing before the judge. A
verbatim record of the proceeding will be made. The appointee has no
other procedural rights before the judge or the Board.
(c) The judge will refer a copy of the record to the Special
Counsel, the Office of Personnel Management, and the employing agency
for whatever action may be appropriate.
Sec. 1201.145 No appeal.
There is no right under 5 U.S.C. 7703 to appeal the agency's action
or any action by the judge or the Board in cases arising under Sec.
1201.143(a) of this part. The removal action will not be delayed as a
result of the hearing.
Requests for Protective Orders
Sec. 1201.146 Requests for protective orders by the Special Counsel.
(a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order that
may be necessary to protect a witness or other individual from
harassment during an investigation by the Special Counsel or during the
pendency of any proceeding before the Board, except that an agency,
other than the Office of the Special Counsel, may not request a
protective order with respect to an investigation by the Special Counsel
during such investigation.
(b) Any motion by the Special Counsel requesting a protective order
must include a concise statement of reasons justifying the motion,
together with any relevant documentary evidence. Where the request is
made in connection with a pending Special Counsel proceeding, the motion
must be filed as early in the proceeding as practicable.
(c) Where there is a pending Special Counsel proceeding, a Special
Counsel motion requesting a protective order must be filed with the
judge conducting the proceeding, and the judge will rule on the motion.
Where there is no pending Special Counsel proceeding, a Special Counsel
motion requesting a protective order must be filed with the Clerk of the
Board, and the Board will designate a judge, as defined at Sec.
1201.4(a) of this part, to rule on the motion.
Sec. 1201.147 Requests for protective orders by persons other than the Special Counsel.
Requests for protective orders by persons other than the Special
Counsel in connection with pending original jurisdiction proceedings are
governed by Sec. 1201.55(d) of this part.
Sec. 1201.148 Enforcement of protective orders.
A protective order issued by a judge or the Board under this subpart
may be enforced in the same manner as provided under subpart F of this
part for Board final decisions and orders.
Subpart E_Procedures for Cases Involving Allegations of Discrimination
Sec. 1201.151 Scope and policy.
(a) Scope. (1) The rules in this subpart implement 5 U.S.C. 7702.
They apply to any case in which an employee or applicant for employment
alleges that a personnel action appealable to the Board was based, in
whole or in part, on prohibited discrimination.
(2) ``Prohibited discrimination,'' as that term is used in this
subpart, means discrimination prohibited by:
(i) Section 717 of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e-16(a));
(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 206(d));
(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 791);
(iv) Sections 12 and 15 of the Age Discrimination in Employment Act
of 1967, as amended (29 U.S.C. 631, 633a); or
(v) Any rule, regulation, or policy directive prescribed under any
provision of law described in paragraphs (a)(2) (i) through (iv) of this
section.
(b) Policy. The Board's policy is to adjudicate impartially,
thoroughly, and
[[Page 45]]
fairly all issues raised under this subpart.
Sec. 1201.152 Compliance with subpart B procedures.
Unless this subpart expressly provides otherwise, all actions
involving allegations of prohibited discrimination must comply with the
regulations that are included in subpart B of this part.
Sec. 1201.153 Contents of appeal.
(a) Contents. An appeal raising issues of prohibited discrimination
must comply with Sec. 1201.24 of this part, with the following
exceptions:
(1) The appeal must state that there was discrimination in
connection with the matter appealed, and it must state specifically how
the agency discriminated against the appellant; and
(2) The appeal must state whether the appellant has filed a formal
discrimination complaint or a grievance with any agency. If he or she
has done so, the appeal must state the date on which the appellant filed
the complaint or grievance, and it must describe any action that the
agency took in response to the complaint or grievance.
(b) Use of Board form or Internet filing option. An appellant may
comply with paragraph (a) of this section by completing MSPB Form 185,
or by completing all requests for information marked as required at the
e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed
at the Board's Web site (http://www.mspb.gov).
[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59864, Oct. 20, 2003;
69 FR 57631, Sept. 27, 2004]
Sec. 1201.154 Time for filing appeal; closing record in cases involving grievance decisions.
Appellants who file appeals raising issues of prohibited
discrimination in connection with a matter otherwise appealable to the
Board must comply with the following time limits:
(a) Where the appellant has been subject to an action appealable to
the Board, he or she may either file a timely complaint of
discrimination with the agency or file an appeal with the Board no later
than 30 days after the effective date, if any, of the action being
appealed, or 30 days after the date of receipt of the agency's decision
on the appealable action, whichever is later.
(b) If the appellant has filed a timely formal complaint of
discrimination with the agency:
(1) An appeal must be filed within 30 days after the appellant
receives the agency resolution or final decision on the discrimination
issue; or
(2) If the agency has not resolved the matter or issued a final
decision on the formal complaint within 120 days, the appellant may
appeal the matter directly to the Board at any time after the expiration
of 120 calendar days.
(c) If the appellant files an appeal prematurely under this subpart,
the judge will dismiss the appeal without prejudice to its later
refiling under Sec. 1201.22 of this part. If holding the appeal for a
short time would allow it to become timely, the judge may hold the
appeal rather than dismiss it.
(d) This paragraph does not apply to employees of the Postal Service
or to other employees excluded from the coverage of the federal labor-
management relations laws at chapter 71 of title 5, United States Code.
If the appellant has filed a grievance with the agency under a
negotiated grievance procedure, he may ask the Board to review the final
decision on the grievance if he alleges before the Board that he is the
victim of prohibited discrimination. Usually, the final decision on a
grievance is the decision of an arbitrator. A full description of an
individual's right to pursue a grievance and to request Board review of
a final decision on the grievance is found at 5 U.S.C. 7121 and 7702.
The appellant's request for Board review must be filed within 35 days
after the date of issuance of the decision or, if the appellant shows
that the decision was received more than 5 days after the date of
issuance, within 30 days after the date the appellant received the
decision. The appellant must file the request with the Clerk of the
Board, Merit Systems Protection Board, Washington, DC 20419. The request
for review must contain:
(1) A statement of the grounds on which review is requested;
[[Page 46]]
(2) References to evidence of record or rulings related to the
issues before the Board;
(3) Arguments in support of the stated grounds that refer
specifically to relevant documents, and that include relevant citations
of authority; and
(4) Legible copies of the final grievance or arbitration decision,
the agency decision to take the action, and other relevant documents.
Those documents may include a transcript or tape recording of the
hearing.
(e) The record will close upon expiration of the period for filing
the response to the petition for review, or to the brief on
intervention, if any, or on any other date the Board sets for this
purpose. Once the record closes, no additional evidence or argument will
be accepted unless the party submitting it shows that the evidence was
not readily available before the record closed.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994;
62 FR 59992, Nov. 6, 1997; 65 FR 25624, May 3, 2000]
Sec. 1201.155 Remand of allegations of discrimination.
If the parties file a written agreement that the discrimination
issue should be remanded to the agency for consideration, and if the
judge determines that action would be in the interest of justice, the
judge may take that action. The remand order will specify a time period
within which the agency action must be completed. In no instance will
that time period exceed 120 days. While the issue is pending with the
agency, the judge will retain jurisdiction over the appeal.
Sec. 1201.156 Time for processing appeals involving allegations of discrimination.
(a) Issue raised in appeal. When an appellant alleges prohibited
discrimination in the appeal, the judge will decide both the issue of
discrimination and the appealable action within 120 days after the
appeal is filed.
(b) Issue not raised in appeal. When an appellant has not alleged
prohibited discrimination in the appeal, but has raised the issue later
in the proceeding, the judge will decide both the issue of
discrimination and the appealable action within 120 days after the issue
is raised.
(c) Discrimination issue remanded to agency. When the judge remands
an issue of discrimination to the agency, adjudication will be completed
within 120 days after the agency completes its action and returns the
case to the Board.
Sec. 1201.157 Notice of right to judicial review.
Any final decision of the Board under 5 U.S.C. 7702 will notify the
appellant of his or her right, within 30 days after receiving the
Board's final decision, to petition the Equal Employment Opportunity
Commission to consider the Board's decision, or to file a civil action
in an appropriate United States district court. If an appellant elects
to waive the discrimination issue, an appeal may be filed with the
United States Court of Appeals for the Federal Circuit as stated in
Sec. 1201.120 of this part.
[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]
Review of Board Decision
Sec. 1201.161 Action by the Equal Employment Opportunity Commission;
judicial review.
(a) Time limit for determination. In cases in which an appellant
petitions the Equal Employment Opportunity Commission (Commission) for
consideration of the Board's decision under 5 U.S.C. 7702(b)(2), the
Commission will determine, within 30 days after the date of the
petition, whether it will consider the decision.
(b) Judicial review. The Board's decision will become judicially
reviewable on:
(1) The date on which the decision is issued, if the appellant does
not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or
(2) The date of the Commission's decision that it will not consider
the petition filed under 5 U.S.C. 7702(b)(2).
(c) Commission processing and time limits. If the Commission decides
to consider the decision of the Board, within 60 days after making its
decision it will complete its consideration and either:
[[Page 47]]
(1) Concur in the decision of the Board; or
(2) Issue in writing and forward to the Board for its action under
Sec. 1201.162 of this subpart another decision, which differs from the
decision of the Board to the extent that the Commission finds that, as a
matter of law:
(i) The decision of the Board constitutes an incorrect
interpretation of any provision of any law, rule, regulation, or policy
directive related to prohibited discrimination; or
(ii) The evidence in the record as a whole does not support the
decision involving that provision.
(d) Transmittal of record. The Board will transmit a copy of its
record to the Commission upon request.
(e) Development of additional evidence. When asked by the Commission
to do so, the Board or a judge will develop additional evidence
necessary to supplement the record. This action will be completed within
a period that will permit the Commission to make its decision within the
statutory 60-day time limit referred to in paragraph (c) of this
section. The Board or the judge may schedule additional proceedings if
necessary in order to comply with the Commission's request.
(f) Commission concurrence in Board decision. If the Commission
concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the
appellant may file suit in an appropriate United States district court.
Sec. 1201.162 Board action on the Commission decision; judicial review.
(a) Board decision. Within 30 days after receipt of a decision of
the Commission issued under 1201.161(c)(2), the Board shall consider the
decision and:
(1) Concur and adopt in whole the decision of the Commission; or
(2) To the extent that the Board finds that, as a matter of law:
(i) The Commission decision is based on an incorrect interpretation
of any provision of any civil service law, rule, regulation, or policy
directive, or
(ii) The evidence in the record as a whole does not support the
Commission decision involving that provision, it may reaffirm the
decision of the Board. In doing so, it may make revisions in the
decision that it determines are appropriate.
(b) Judicial review. If the Board concurs in or adopts the decision
of the Commission under paragraph (a)(1) of this section, the decision
of the Board is a judicially reviewable action.
Special Panel
Sec. 1201.171 Referral of case to Special Panel.
If the Board reaffirms its decision under Sec. 1201.162(a)(2) of
this part with or without modification, it will certify the matter
immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon
certification, the Board, within 5 days (excluding Saturdays, Sundays,
and Federal holidays), will transmit the administrative record in the
proceeding to the Chairman of the Special Panel and to the Commission.
That record will include the following:
(a) The factual record compiled under this section, which will
include a transcript of any hearing;
(b) The decisions issued by the Board and the Commission under 5
U.S.C. 7702; and
(c) A transcript of oral arguments made, or legal briefs filed,
before the Board or the Commission.
Sec. 1201.172 Organization of Special Panel; designation of members.
(a) A Special Panel is composed of:
(1) A Chairman, appointed by the President with the advice and
consent of the Senate, whose term is six (6) years;
(2) One member of the Board, designated by the Chairman of the Board
each time a Panel is convened;
(3) One member of the Commission, designated by the Chairman of the
Commission each time a Panel is convened.
(b) Designation of Special Panel members--(1) Time of designation.
Within 5 days of certification of a case to a Special Panel, the
Chairman of Board and the Chairman of the Commission each will designate
one member from his or her agency to serve on the Special Panel.
(2) Manner of designation. Letters designating the Panel members
will be served on the Chairman of the Panel and on the parties to the
appeal.
[[Page 48]]
Sec. 1201.173 Practices and procedures of Special Panel.
(a) Scope. The rules in this subpart apply to proceedings before a
Special Panel.
(b) Suspension of rules. Unless a rule is required by statute, the
Chairman of a Special Panel may suspend the rule, in the interest of
expediting a decision or for other good cause shown, and may conduct the
proceedings in a manner he or she directs. The Chairman may take this
action at the request of a party, or on his or her own motion.
(c) Time limit for proceedings. In accordance with 5 U.S.C.
7702(d)(2)(A), the Special Panel will issue a decision within 45 days
after a matter has been certified to it.
(d) Administrative assistance to the Special Panel. (1) The Board
and the Commission will provide the Panel with the administrative
resources that the Chairman of the Special Panel determines are
reasonable and necessary.
(2) Assistance will include, but is not limited to, processing
vouchers for pay and travel expenses.
(3) The Board and the Commission are responsible for all
administrative costs the Special Panel incurs, and, to the extent
practicable, they will divide equally the costs of providing
administrative assistance. If the Board and the Commission disagree on
the manner in which costs are to be divided, the Chairman of the Special
Panel will resolve the disagreement.
(e) Maintaining the official record. The Board will maintain the
official record of the appeal. It will transmit two copies of each
submission that is filed to each member of the Special Panel in an
expeditious manner.
(f) Filing and service of pleadings. (1) The parties must file the
original and six copies of each submission with the Clerk, Merit Systems
Protection Board, 1615 M Street, NW., Washington, DC 20419. The Office
of the Clerk will serve one copy of each submission on the other
parties.
(2) A certificate of service specifying how and when service was
made must accompany all submissions of the parties.
(3) Service may be made by mail or by personal delivery during the
Board's normal business hours (8:30 a.m. to 5:00 p.m.). Because of the
short statutory time limit for processing these cases, parties must file
their submissions by overnight Express Mail, provided by the U.S. Postal
Service, if they file their submissions by mail.
(4) A submission filed by Express Mail is considered to have been
filed on the date of the Express Mail Order. A submission that is
delivered personally is considered to have been filed on the date the
Office of the Clerk of the Board receives it.
(g) Briefs and responsive pleadings. If the parties wish to submit
written argument, they may file briefs with the Special Panel within 15
days after the date of the Board's certification order. Because of the
short statutory time limit for processing these cases, the Special Panel
ordinarily will not permit responsive pleadings.
(h) Oral argument. The parties have the right to present oral
argument. Parties wishing to exercise this right must indicate this
desire when they file their briefs or, if no briefs are filed, within 15
days after the date of the Board's certification order. Upon receiving a
request for argument, the Chairman of the Special Panel will determine
the time and place for argument and the amount of time to be allowed
each side, and he or she will provide this information to the parties.
(i) Postargument submission. Because of the short statutory time
limit for processing these cases, the parties may not file postargument
submissions unless the Chairman of the Special Panel permits those
submissions.
(j) Procedural matters. Any procedural matters not addressed in
these regulations will be resolved by written order of the Chairman of
the Special Panel.
(k) Electronic filing. Pleadings in matters before the Special Panel
may not be filed or served in electronic form.
[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000;
68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]
Sec. 1201.174 Enforcing the Special Panel decision.
The Board, upon receipt of the decision of the Special Panel, will
order the agency concerned to take any action appropriate to carry out
the decision of
[[Page 49]]
the Panel. The Board's regulations regarding enforcement of a final
order of the Board apply to this matter. These regulations are set out
in subpart F of this part.
Sec. 1201.175 Judicial review of cases decided under 5 U.S.C. 7702.
(a) Place and type of review. The appropriate United States district
court is authorized to conduct all judicial review of cases decided
under 5 U.S.C. 7702. Those cases include appeals from actions taken
under the following provisions: Section 717(c) of the Civil Rights Act
of 1964, as amended (42 U.S.C. 2000e-16(c)); section 15(c) of the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C.
633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 216(b)).
(b) Time for filing request. Regardless of any other provision of
law, requests for judicial review of all cases decided under 5 U.S.C.
7702 must be filed within 30 days after the appellant received notice of
the judicially reviewable action.
Subpart F_Enforcement of Final Decisions and Orders
Sec. 1201.181 Authority and explanation.
(a) Under 5 U.S.C. 1204(a)(2), the Board has the authority to order
any Federal agency or employee to comply with decisions and orders
issued under its jurisdiction, and the authority to enforce compliance
with its orders and decisions. The parties are expected to cooperate
fully with each other so that compliance with the Board's orders and
decisions can be accomplished promptly and in accordance with the laws,
rules, and regulations that apply to individual cases. The Board's
decisions and orders will contain a notice of the Board's enforcement
authority.
(b) In order to avoid unnecessary petitions under this subpart, the
agency must inform the appellant promptly of the actions it takes to
comply, and it must tell the appellant when it believes it has completed
its compliance. The appellant must provide all necessary information
that the agency requests in order to comply, and, if not otherwise
notified, he or she should, from time to time, ask the agency about its
progress.
Sec. 1201.182 Petition for enforcement.
(a) Appellate jurisdiction. Any party may petition the Board for
enforcement of a final decision or order issued under the Board's
appellate jurisdiction. The petition must be filed promptly with the
regional or field office that issued the initial decision; a copy of it
must be served on the other party or that party's representative; and it
must describe specifically the reasons the petitioning party believes
there is noncompliance. The petition also must include the date and
results of any communications regarding compliance. Any petition for
enforcement that is filed more than 30 days after the date of service of
the agency's notice that it has complied must contain a statement and
evidence showing good cause for the delay and a request for an extension
of time for filing the petition.
(b) Original jurisdiction. Any party seeking enforcement of a final
Board decision or order issued under its original jurisdiction must file
a petition for enforcement with the Clerk of the Board and must serve a
copy of that petition on the other party or that party's representative.
The petition must describe specifically the reasons why the petitioning
party believes there is noncompliance.
(c) Petition by an employee other than a party. (1) Under 5 U.S.C.
1204(e)(2)(B), any employee who is aggrieved by the failure of any other
employee to comply with an order of the Board may petition the Board for
enforcement. Except for a petition filed under paragraph (c)(2) or
(c)(3) of this section, the Board will entertain a petition for
enforcement from an aggrieved employee who is not a party only if the
employee seeks and is granted party status as a permissive intervenor
under Sec. 1201.34(c) of this part. The employee must file a motion to
intervene at the time of filing the petition for enforcement. The
petition for enforcement must describe specifically why the petitioner
believes there is noncompliance and in what way the petitioner is
aggrieved by the
[[Page 50]]
noncompliance. The motion to intervene will be considered in accordance
with Sec. 1201.34(c) of this part.
(2) Under Sec. 1201.33(c) of this part, a nonparty witness who has
obtained an order from a judge that his or her employing agency provide
the witness with official time may petition the Board for enforcement of
the order.
(3) Under Sec. 1201.55(d) of this part, a nonparty witness or other
individual who has obtained a protective order from a judge during the
course of a Board proceeding for protection from harassment may petition
the Board for enforcement of the order.
(4) A petition for enforcement under paragraph (c)(1), (c)(2), or
(c)(3) of this section must be filed promptly with the regional or field
office that issued the order or, if the order was issued by the Board,
with the Clerk of the Board. The petitioner must serve a copy of the
petition on each party or the party's representative. If the petition is
filed under paragraph (c)(1) of this section, the motion to intervene
must be filed and served with the petition.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994;
62 FR 48935, Sept. 18, 1997]
Sec. 1201.183 Procedures for processing petitions for enforcement.
(a) Initial Processing. (1) When a party has filed a petition for
enforcement of a final decision, the alleged noncomplying party must
file one of the following within 15 days of the date of service of the
petition:
(i) Evidence of compliance, including a narrative explanation of the
calculation of back pay and other benefits, and supporting documents;
(ii) Evidence as described in paragraph (a)(1)(i) of this section of
the compliance actions that the party has completed, and a statement of
the actions that are in process and the actions that remain to be taken,
along with a reasonable schedule for full compliance; or
(iii) A statement showing good cause for the failure to comply
completely with the decision of the Board.
The party that filed the petition may respond to that submission within
10 days after the date of service of the submission. The parties must
serve copies of their pleadings on each other as required under Sec.
1201.26(b)(2) of this part.
(2) If the agency is the alleged noncomplying party, it shall submit
the name and address of the agency official charged with complying with
the Board's order, even if the agency asserts it has fully complied. In
the absence of this information, the Board will presume that the highest
ranking appropriate agency official who is not appointed by the
President by and with the consent of the Senate is charged with
compliance.
(3) The judge may convene a hearing if one is necessary to resolve
matters at issue.
(4) If the judge finds that there has been compliance or a good
faith effort to take all actions required to be in compliance with the
final decision, he or she will state those findings in a decision. That
decision will be subject to the procedures for petitions for review by
the Board under subpart C of this part, and subject to judicial review
under Sec. 1201.120 of this part.
(5) If the judge finds that:
(i) The alleged noncomplying party has not taken, or has not made a
good faith effort to take, any action required to be in compliance with
the final decision, or
(ii) The party has taken or made a good faith effort to take one or
more, but not all, actions required to be in compliance with the final
decision; he or she will issue a recommendation containing his or her
findings, a statement of the actions required by the party to be in
compliance with the final decision, and a recommendation that the Board
enforce the final decision.
(6) If a recommendation described under paragraph (a)(5) of this
section is issued, the alleged noncomplying party must do one of the
following:
(i) If it decides to take the actions required by the
recommendation, it must submit to the Clerk of the Board, within 15 days
after the issuance of the recommendation, evidence that it has taken
those actions.
[[Page 51]]
(ii) If it decides not to take any of the actions required by the
recommendation, it must file a brief supporting its nonconcurrence in
the recommendation. The brief must be filed with the Clerk of the Board
within 30 days after the recommendation is issued and, if it is filed by
the agency, it must identify by name, title, and grade the agency
official responsible for the failure to take the actions required by the
recommendation for compliance.
(iii) If the party decides to take one or more, but not all, actions
required by the recommendation, it must submit both evidence of the
actions it has taken and, with respect to the actions that it has not
taken, a brief supporting its disagreement with the recommendation. The
evidence and brief must be filed with the Clerk of the Board within 30
days after issuance of the recommendation and, if it is filed by the
agency, it must contain the identifying information required by
paragraph (a)(6)(ii) of this section.
(7) The petitioner may file a brief that responds to the submission
described in paragraph (a)(6) of this section, and that asks the Board
to review any finding in the recommendation, made under paragraph
(a)(5)(ii) of this section, that the other party is in partial
compliance with the final decision. The petitioner must file this brief
with the Clerk of the Board within 20 days of the date of service of the
submission described in paragraph (a)(6) of this section.
(b) Consideration by the Board. (1) The Board will consider the
recommendation, along with the submissions of the parties, promptly.
When appropriate, the Board may require the alleged noncomplying party,
or that party's representative, to appear before the Board to show why
sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and
1204(e)(2)(A). The Board also may require the party or its
representative to make this showing in writing, or to make it both
personally and in writing.
(2) The Board may hold a hearing on an order to show cause, or it
may issue a decision without a hearing.
(3) The Board's final decision on the issues of compliance is
subject to judicial review under Sec. 1201.120 of this part.
(c) Certification to the Comptroller General. When appropriate, the
Board may certify to the Comptroller General of the United States, under
5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain
Federal employee. This order may apply to any Federal employee, other
than a Presidential appointee subject to confirmation by the Senate, who
is found to be in noncompliance with the Board's order.
(d) Effect of Special Counsel's action or failure to act. Failure by
the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and
subpart D of this part will not preclude the Board from taking action
under this subpart.
[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]
Subpart G_Savings Provisions
Sec. 1201.191 Savings provisions.
(a) Civil Service Reform Act of 1978 (Pub.L. 95-454)--(1) Scope. All
executive orders, rules and regulations relating to the Federal service
that were in effect prior to the effective date of the Civil Service
Reform Act shall continue in effect and be applied by the Board in its
adjudications until modified, terminated, superseded, or repealed by the
President, Office of Personnel Management, the Merit Systems Protection
Board, the Equal Employment Opportunity Commission, or the Federal Labor
Relations Authority, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision
of the Civil Service Reform Act shall be applied by the Board in such a
way as to affect any administrative proceeding pending at the effective
date of such provision. ``Pending'' is considered to encompass existing
agency proceedings, and appeals before the Board or its predecessor
agencies, that were subject to judicial review or under judicial review
on January 11, 1979, the date on which the Act became effective. An
agency proceeding is considered to exist once the employee has received
notice of the proposed action.
(3) Explanation. Mr. X was advised of agency's intention to remove
him for abandonment of position, effective December 29, 1978. Twenty
days later Mr. X appealed the agency action to the
[[Page 52]]
Merit Systems Protection Board. The Merit Systems Protection Board
docketed Mr. X's appeal as an ``old system case,'' i.e., one to which
the savings clause applied. The appropriate regional office processed
the case, applying the substantive laws, rules and regulations in
existence prior to the enactment of the Act. The decision, dated
February 28, 1979, informed Mr. X that he is entitled to judicial review
if he files a timely notice of appeal in the appropriate United States
district court or the United States Court of Claims under the statute of
limitations applicable when the adverse action was taken.
(b) Whistleblower Protection Act of 1989 (Pub. L. 101-12)--(1)
Scope. All orders, rules, and regulations issued by the Board and the
Special Counsel before the effective date of the Whistleblower
Protection Act of 1989 shall continue in effect, according to their
terms, until modified, terminated, superseded, or repealed by the Board
or the Special Counsel, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision
of the Whistleblower Protection Act of 1989 shall be applied by the
Board in such a way as to affect any administrative proceeding pending
at the effective date of such provision. ``Pending'' is considered to
encompass existing agency proceedings, including personnel actions that
were proposed, threatened, or taken before July 9, 1989, the effective
date of the Whistleblower Protection Act of 1989, and appeals before the
Board or its predecessor agencies that were subject to judicial review
on that date. An agency proceeding is considered to exist once the
employee has received notice of the proposed action.
Subpart H_Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation
Expenses, Where Applicable), Consequential Damages, and Compensatory
Damages
Source: 63 FR 41179, Aug. 3, 1998, unless otherwise noted.
Sec. 1201.201 Statement of purpose.
(a) This subpart governs Board proceedings for awards of attorney
fees (plus costs, expert witness fees, and litigation expenses, where
applicable), consequential damages, and compensatory damages.
(b) There are seven statutory provisions covering attorney fee
awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most
requests for attorney fees will be governed by Sec. 1201.202(a)(1).
There are, however, other attorney fee provisions that apply only to
specific kinds of cases. For example, Sec. 1201.202(a)(4) applies only
to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6)
apply only to corrective and disciplinary action cases brought by the
Special Counsel. Section 1201.202(a)(7) applies only to appeals brought
under the Uniformed Services Employment and Reemployment Rights Act.
(c) An award of consequential damages is authorized in only two
situations: Where the Board orders corrective action in a whistleblower
appeal under 5 U.S.C. 1221, and where the Board orders corrective action
in a Special Counsel complaint under 5 U.S.C. 1214. Consequential
damages include such items as medical costs and travel expenses, and
other costs as determined by the Board through case law.
(d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an
award of compensatory damages to a prevailing party who is found to have
been intentionally discriminated against based on race, color, religion,
sex, national origin, or disability. Compensatory damages include
pecuniary losses, future pecuniary losses, and nonpecuniary losses, such
as emotional pain, suffering, inconvenience, mental anguish, and loss of
enjoyment of life.
Sec. 1201.202 Authority for awards.
(a) Awards of attorney fees (plus costs, expert witness fees, and
litigation expenses, where applicable). The Board is authorized by
various statutes to order payment of attorney fees and, where
applicable, costs, expert witness fees, and litigation expenses. These
statutory authorities include, but are not
[[Page 53]]
limited to, the following authorities to order payment of:
(1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the
appellant or respondent is the prevailing party in an appeal under 5
U.S.C. 7701 or an agency action against an administrative law judge
under 5 U.S.C. 7521, and an award is warranted in the interest of
justice;
(2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the
appellant or respondent is the prevailing party in an appeal under 5
U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C.
7121(d), or an agency action against an administrative law judge under 5
U.S.C. 7521, and the decision is based on a finding of discrimination
prohibited under 5 U.S.C. 2302(b)(1);
(3) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(2),
where the appellant is the prevailing party in an appeal under 5 U.S.C.
7701 and the Board's decision is based on a finding of a prohibited
personnel practice;
(4) Attorney fees and costs, as authorized by 5 U.S.C.
1221(g)(1)(B), where the Board orders corrective action in a
whistleblower appeal to which 5 U.S.C. 1221 applies;
(5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2) or 5 U.S.C.
7701(g)(1), where the Board orders corrective action in a Special
Counsel complaint under 5 U.S.C. 1214;
(6) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the
respondent is the prevailing party in a Special Counsel complaint for
disciplinary action under 5 U.S.C. 1215;
(7) Attorney fees, expert witness fees, and litigation expenses, as
authorized by the Uniformed Services Employment and Reemployment Rights
Act, 38 U.S.C. 4324(c)(4); and
(8) Attorney fees, expert witness fees, and other litigation
expenses, as authorized by the Veterans Employment Opportunities Act; 5
U.S.C. 3330c(b).
(b) Awards of consequential damages. The Board may order payment of
consequential damages, including medical costs incurred, travel
expenses, and any other reasonable and foreseeable consequential
damages:
(1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board
orders corrective action in a whistleblower appeal to which 5 U.S.C.
1221 applies; and
(2) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders
corrective action in a Special Counsel complaint under 5 U.S.C. 1214.
(c) Awards of compensatory damages. The Board may order payment of
compensatory damages, as authorized by section 102 of the Civil Rights
Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful
intentional discrimination but not on an employment practice that is
unlawful because of its disparate impact under the Civil Rights Act of
1964, the Rehabilitation Act of 1973, or the Americans with Disabilities
Act of 1990. Compensatory damages include pecuniary losses, future
pecuniary losses, and nonpecuniary losses such as emotional pain,
suffering, inconvenience, mental anguish, and loss of enjoyment of life.
(d) Definitions. For purposes of this subpart:
(1) A proceeding on the merits is a proceeding to decide an appeal
of an agency action under 5 U.S.C. 1221 or 7701, an appeal under 38
U.S.C. 4324, an appeal under 5 U.S.C. 3330a, a request to review an
arbitration decision under 5 U.S.C. 7121(d), a Special Counsel complaint
under 5 U.S.C. 1214 or 1215, or an agency action against an
administrative law judge under 5 U.S.C. 7521.
(2) An addendum proceeding is a proceeding conducted after issuance
of a final decision in a proceeding on the merits, including a decision
accepting the parties' settlement of the case. The final decision in the
proceeding on the merits may be an initial decision of a judge that has
become final under Sec. 1201.113 of this part or a final decision of
the Board.
[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000]
Sec. 1201.203 Proceedings for attorney fees.
(a) Form and content of request. A request for attorney fees must be
made by motion, must state why the appellant or respondent believes he
or she is entitled to an award under the applicable statutory standard,
and must be supported by evidence substantiating the amount of the
request. Evidence
[[Page 54]]
supporting a motion for attorney fees must include at a minimum:
(1) Accurate and current time records;
(2) A copy of the terms of the fee agreement (if any);
(3) A statement of the attorney's customary billing rate for similar
work, with evidence that that rate is consistent with the prevailing
community rate for similar services in the community in which the
attorney ordinarily practices; and
(4) An established attorney-client relationship.
(b) Addendum proceeding. A request for attorney fees will be decided
in an addendum proceeding.
(c) Place of filing. Where the initial decision in the proceeding on
the merits was issued by a judge in a MSPB regional or field office, a
motion for attorney fees must be filed with the regional or field office
that issued the initial decision. Where the decision in the proceeding
on the merits was an initial decision issued by a judge at the Board's
headquarters or where the only decision was a final decision issued by
the Board, a motion for attorney fees must be filed with the Clerk of
the Board.
(d) Time of filing. A motion for attorney fees must be filed as soon
as possible after a final decision of the Board but no later than 60
days after the date on which a decision becomes final.
(e) Service. A copy of a motion for attorney fees must be served on
the other parties or their representatives at the time of filing. A
party may file a pleading responding to the motion within the time limit
established by the judge.
(f) Hearing; applicability of subpart B. The judge may hold a
hearing on a motion for attorney fees and may apply appropriate
provisions of subpart B of this part to the addendum proceeding.
(g) Initial decision; review by the Board. The judge will issue an
initial decision in the addendum proceeding, which shall be subject to
the provisions for a petition for review by the Board under subpart C of
this part.
[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000
Sec. 1201.204 Proceedings for consequential damages and compensatory damages.
(a) Time for making request. (1) A request for consequential damages
or compensatory damages must be made during the proceeding on the
merits, no later than the end of the conference(s) held to define the
issues in the case.
(2) The judge or the Board, as applicable, may waive the time limit
for making a request for consequential damages or compensatory damages
for good cause shown. The time limit will not be waived if a party shows
that such waiver would result in undue prejudice.
(b) Form and content of request. A request for consequential damages
or compensatory damages must be made in writing and must state the
amount of damages sought and the reasons why the appellant or respondent
believes he or she is entitled to an award under the applicable
statutory standard.
(c) Service. A copy of a request for consequential damages or
compensatory damages must be served on the other parties or their
representatives when the request is made.
A party may file a pleading responding to the request within the
time limit established by the judge or the Board, as applicable.
(d) Addendum proceeding. (1) A request for consequential damages or
compensatory damages will be decided in an addendum proceeding.
(2) A judge may waive the requirement of paragraph (d)(1), either on
his or her own motion or on the motion of a party, and consider a
request for damages in a proceeding on the merits where the judge
determines that such action is in the interest of the parties and will
promote efficiency and economy in adjudication.
(e) Initiation of addendum proceeding. (1) A motion for initiation
of an addendum proceeding to decide a request for consequential damages
or compensatory damages must be filed as soon as possible after a final
decision of the Board but no later than 60 days after the date on which
a decision becomes final. Where the initial decision in the proceeding
on the merits was issued by a judge in a MSPB regional or field office,
the motion must be filed with the
[[Page 55]]
regional or field office that issued the initial decision. Where the
decision in the proceeding on the merits was an initial decision issued
by a judge at the Board's headquarters or where the only decision was a
final decision issued by the Board, the motion must be filed with the
Clerk of the Board.
(2) A copy of a motion for initiation of an addendum proceeding to
decide a request for consequential damages or compensatory damages must
be served on the other parties or their representatives at the time of
filing. A party may file a pleading responding to the motion within the
time limit established by the judge.
(f) Hearing; applicability of subpart B. The judge may hold a
hearing on a request for consequential damages or compensatory damages
and may apply appropriate provisions of subpart B of this part to the
addendum proceeding.
(g) Initial decision; review by the Board. The judge will issue an
initial decision in the addendum proceeding, which shall be subject to
the provisions for a petition for review by the Board under subpart C of
this part.
(h) Request for damages first made in proceeding before the Board.
Where a request for consequential damages or compensatory damages is
first made on petition for review of a judge's initial decision on the
merits and the Board waives the time limit for making the request in
accordance with paragraph (a)(2) of this section, or where the request
is made in a case where the only MSPB proceeding is before the 3-member
Board, including, for compensatory damages only, a request to review an
arbitration decision under 5 U.S.C. 7121(d), the Board may:
(1) Consider both the merits and the request for damages and issue a
final decision;
(2) Remand the case to the judge for a new initial decision, either
on the request for damages only or on both the merits and the request
for damages; or
(3) Where there has been no prior proceeding before a judge, forward
the request for damages to a judge for hearing and a recommendation to
the Board, after which the Board will issue a final decision on both the
merits and the request for damages.
(i) EEOC review of decision on compensatory damages. A final
decision of the Board on a request for compensatory damages pursuant to
the Civil Rights Act of 1991 shall be subject to review by the Equal
Employment Opportunity Commission as provided under subpart E of this
part.
Sec. 1201.205 Judicial review.
A final Board decision under this subpart is subject to judicial
review as provided under 5 U.S.C. 7703.
Appendix I to Part 1201 [Reserved]
Appendix II to Part 1201--Appropriate Regional or Field Office for
Filing Appeals
All submissions shall be addressed to the Regional Director, if
submitted to a regional office, or the Chief Administrative Judge, if
submitted to a field office, Merit Systems Protection Board, at the
addresses listed below, according to geographic region of the employing
agency or as required by Sec. 1201.4(d) of this part. The facsimile
numbers listed below are TDD-capable; however, calls will be answered by
voice before being connected to the TDD. Address of Appropriate Regional
or Field Office and Area Served:
1. Atlanta Regional Office, 401 West Peachtree Street, NW., 10th
floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767,
(Alabama; Florida; Georgia; Mississippi; South Carolina; and Tennessee).
2. Central Regional Office, 230 South Dearborn Street, 31st floor,
Chicago, Illinois 60604-1669, Facsimile No.: (312) 886-4231, (Illinois;
Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota;
Missouri; Ohio; and Wisconsin).
3. Northeastern Regional Office, U.S. Customhouse, Room 501, Second
and Chestnut Streets, Philadelphia, Pennsylvania 19106-2987, Facsimile
No.: (215) 597-3456, (Connecticut; Delaware; Maine; Maryland--except the
counties of Montgomery and Prince George's; Massachusetts; New
Hampshire; New Jersey--except the counties of Bergen, Essex, Hudson, and
Union; Pennsylvania; Rhode Island; Vermont; and West Virginia).
3a. New York Field Office, 26 Federal Plaza, Room 3137-A, New York,
New York 10278-0022, Facsimile No.: (212) 264-1417, (New Jersey--
counties of Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and
Virgin Islands).
4. Washington Regional Office, 1800 Diagonal Road, Alexandria,
Virginia 22314, Facsimile No.: (703) 756-7112, (Maryland--counties of
Montgomery and Prince George's; North Carolina; Virginia; Washington,
DC;
[[Page 56]]
and all overseas areas not otherwise covered).
5. Western Regional Office, 250 Montgomery Street, Suite 400, 4th
floor, San Francisco, California 94104-3401, Facsimile No.: (415) 705-
2945, (Alaska; California; Hawaii; Idaho; Nevada; Oregon; Washington;
and Pacific overseas areas).
5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood,
Colorado 80228-2211, Facsimile No.: (303) 969-5109, (Arizona; Colorado;
Kansas--except Kansas City; Montana; Nebraska; New Mexico; North Dakota;
South Dakota; Utah; and Wyoming).
6. Dallas Regional Office, 1100 Commerce Street, Room 620, Dallas,
Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas; Louisiana;
Oklahoma; and Texas).
[69 FR 11503, Mar. 11, 2004, as amended at 69 FR 61991, Oct. 22, 2004]
Appendix III to Part 1201--Approved Hearing Locations By Regional Office
Atlanta Regional Office
Birmingham, Alabama
Huntsville, Alabama
Mobile, Alabama
Montgomery, Alabama
Jacksonville, Florida
Miami, Florida
Orlando, Florida
Pensacola, Florida
Tallahassee, Florida
Tampa/St. Petersburg, Florida
Atlanta, Georgia
Augusta, Georgia
Macon, Georgia
Savannah, Georgia
Jackson, Mississippi
Charleston, South Carolina
Columbia, South Carolina
Chattanooga, Tennessee
Knoxville, Tennessee
Memphis, Tennessee
Nashville, Tennessee
Central Regional Office
Chicago, Illinois
Indianapolis, Indiana
Davenport, Iowa/Rock Island, Illinois
Des Moines, Iowa
Lexington, Kentucky
Louisville, Kentucky
Detroit, Michigan
Minneapolis/St. Paul, Minnesota
Kansas City, Missouri
Springfield, Missouri
St. Louis, Missouri
Cleveland, Ohio
Cincinnati, Ohio
Columbus, Ohio
Dayton, Ohio
Milwaukee, Wisconsin
Dallas Regional Office
Little Rock, Arkansas
Alexandria, Louisiana
New Orleans, Louisiana
Oklahoma City, Oklahoma
Tulsa, Oklahoma
Corpus Christi, Texas
Dallas, Texas
El Paso, Texas
Houston, Texas
San Antonio, Texas
Temple, Texas
Texarkana, Texas
Northeastern Regional Office
Hartford, Connecticut
New Haven, Connecticut
Dover, Delaware
Bangor, Maine
Portland, Maine
Baltimore, Maryland
Boston, Massachusetts
Manchester, New Hampshire
Portsmouth, New Hampshire
Trenton, New Jersey
Harrisburg, Pennsylvania
Philadelphia, Pennsylvania
Pittsburgh, Pennsylvania
Wilkes-Barre, Pennsylvania
Providence, Rhode Island
Burlington, Vermont
Charleston, West Virginia
Morgantown, West Virginia
New York Field Office
Newark, New Jersey
Albany, New York
Buffalo, New York
New York, New York
Syracuse, New York
San Juan, Puerto Rico
Washington Regional Office
Washington, DC
Asheville, North Carolina
Charlotte, North Carolina
Raleigh, North Carolina
Jacksonville, North Carolina
Alexandria, Virginia
Norfolk, Virginia
Richmond, Virginia
Roanoke, Virginia
Western Regional Office
Anchorage, Alaska
Fresno, California
Los Angeles, California
Monterey, California
Sacramento, California
San Bernardino, California
San Diego, California
San Francisco, California
Santa Ana, California
Santa Barbara, California
Honolulu, Hawaii
[[Page 57]]
Boise, Idaho
Pocatello, Idaho
Las Vegas, Nevada
Reno, Nevada
Medford, Oregon
Portland, Oregon
Seattle, Washington
Spokane, Washington
Richland, Kennewick, and Pasco, Washington
Denver Field Office
Phoenix, Arizona
Tucson, Arizona
Grand Junction, Colorado
Lakewood, Colorado
Pueblo, Colorado
Wichita, Kansas
Billings, Montana
Great Falls, Montana
Missoula, Montana
Omaha, Nebraska
Albuquerque, New Mexico
Bismarck, North Dakota
Fargo, North Dakota
Rapid City, South Dakota
Sioux Falls, South Dakota
Salt Lake City, Utah
Casper, Wyoming
[69 FR 11503, Mar. 11, 2004, as amended at 69 FR 61991, Oct. 22, 2004]
Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C.1746
Declaration
I, ----------------------, do hereby declare:
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed on
________________________________________________________________________
Date
________________________________________________________________________
Signature
PART 1202_STATUTORY REVIEW BOARD--Table of Contents
Authority: 5 U.S.C. 1204.
Sec. 1202.1 Designating Chairman of Statutory Review Board.
At the written request of the Department of Transportation, the
Chairman of the Board will designate a presiding official of the Board
to serve as the Chairman of any Board of Review established by the
Secretary of Transportation under 5 U.S.C. 3383(b) to review certain
actions to remove air traffic controllers.
[54 FR 28658, July 6, 1989]
PART 1203_PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF
PERSONNEL MANAGEMENT--Table of Contents
General
Sec.
1203.1 Scope; application of part 1201, subpart B.
1203.2 Definitions.
Procedures for Review
1203.11 Request for regulation review.
1203.12 Granting or denying the request for regulation review.
1203.13 Filing pleadings.
1203.14 Serving documents.
1203.15 Review of regulations on the Board's own motion.
1203.16 Proceedings.
Order of the Board
1203.21 Final order of the Board.
1203.22 Enforcement of order.
Authority: 5 U.S.C. 1204(a), 1204(f), and 1204(h).
Source: 54 FR 23632, June 2, 1989, unless otherwise noted.
General
Sec. 1203.1 Scope; application of part 1201, subpart B.
(a) General. This part applies to the Board's review, under 5 U.S.C.
1204(a)(4) and 1204(f), of any rules or regulations (``regulations'')
issued by the Office of Personnel Management (OPM). It applies to the
Board's review of the way in which an agency implements regulations, as
well as to its review of the validity of the regulations on their face.
(b) Application of 5 CFR part 1201, subparts B and C. (1) Where
appropriate, and unless the Board's regulations provide otherwise, the
Board may apply the provisions of 5 CFR part 1201, subpart B to
proceedings conducted under this part. It may do so on its own motion or
on the motion of a party to these proceedings.
(2) The following provisions of 5 CFR part 1201, subparts B and C do
not apply to proceedings conducted under this part:
[[Page 58]]
(i) Sections 1201.21 through 1201.27 which concern petitions for
appeal of agency actions, and the pleadings that are filed in connection
with those petitions; and
(ii) Sections 1201.111 through 1201.119 which concern final
decisions of presiding officials, and petitions for Board review of
those decisions.
[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]
Sec. 1203.2 Definitions.
(a) Invalid regulation means a regulation that has been issued by
OPM, and that, on its face, would require an employee to commit a
prohibited personnel practice if any agency implemented the regulation.
(b) Invalidly implemented regulation means a regulation, issued by
OPM, whose implementation by an agency has required an employee to
commit a prohibited personnel practice. A valid regulation may be
invalidly implemented.
(c) Merit system principles are the principles stated in 5 U.S.C.
2301(b)(1) through 2301(b)(9).
(d) Pleadings are written submissions containing claims,
allegations, arguments, or evidence. They include briefs, motions,
requests for regulation review, responses, replies, and attachments that
are submitted in connection with proceedings under this part.
(e) Prohibited personnel practices are the impermissible actions
described in 5 U.S.C. 2302(b)(1) through 2302(b)(11).
(f) Regulation review means the procedure under which the Board,
under 5 U.S.C. 1204(f), reviews regulations issued by OPM on their face,
or reviews those regulations as they have been implemented, or both, in
order to determine whether the regualtions require any employee to
commit a prohibited personnel practice.
(g) Request for regulation review means a request that the Board
review a regulation issued by OPM.
[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]
Procedures for Review
Sec. 1203.11 Request for regulation review.
(a) An interested person or the Special Counsel may submit a request
for regulation review.
(b) Contents of request. (1) Each request for regulation review must
include the following information:
(i) The name, address, and signature of the requester's
representative or, if the requester has no representative, of the
requester;
(ii) A citation identifying the regulation being challenged;
(iii) A statement (along with any relevant documents) describing in
detail the reasons why the regulation would require an employee to
commit a prohibited personnel practice; or the reasons why the
implementation of the regulation requires an employee to commit a
prohibited personnel practice;
(iv) Specific identification of the prohibited personnel practice at
issue; and
(v) A description of the action the requester would like the Board
to take.
(2) If the prohibited personnel practice at issue is one prohibited
by 5 U.S.C. 2302(b)(12), the request must include the following
additional information:
(i) Identification of the law or regulation that allegedly would be
or has been violated, and how it would be or has been violated; and
(ii) Identification of the merit system principles at issue and an
explanation of the way in which the law or regulation at issue
implements or directly concerns those principles.
[54 FR 23632, June 2, 1989, as amended at 65 FR 57939, Sept. 27, 2000]
Sec. 1203.12 Granting or denying the request for regulation review.
(a) The Board, in its sole discretion, may grant or deny an
interested person's request for regulation review. It will grant a
request for regulation review that the Special Counsel submits. It will
not, however, review a regulation before its effective date.
(b) After considering the request for regulation review, the Board
will issue an order granting or denying the request in whole or in part.
Orders in
[[Page 59]]
which the Board grants the request, in whole or in part, will identify
the agency or agencies involved, if any. They also will include the
following:
(1) A citation identifying the regulation being challenged;
(2) A description of the issues to be addressed;
(3) The docket number assigned to the proceedings; and
(4) Instructions covering the review proceedings, including
information regarding the time limits for filing submissions related to
the request.
[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]
Sec. 1203.13 Filing pleadings.
(a) Place to file and number of copies. One original and three
copies of each pleading must be filed with the Office of the Clerk, U.S.
Merit Systems Protection Board, 1615 M Street, NW., Washington, DC
20419. In addition, parties to a proceeding under this part must serve
their pleadings on each other in accordance with Sec. 1203.14 of this
part. The Office of the Clerk will make all pleadings available for
review by the public.
(b) Time limits. (1) A request for regulation review may be filed
any time after the effective date of the regulation.
(2) A response to a request for regulation review, whether the
response supports or opposes the request, must be filed within the time
period provided in the Board order granting the request for review.
(3) A reply to a response may be filed within 10 days after the
response is filed. The reply may address only those matters raised in
the response that were not addressed in the request for regulation
review.
(4) Motions may be filed at any time during the regulation review.
The filing of a motion will not delay the acting of the Board unless the
Board orders a postponement. The Board may rule immediately on a motion
for an extension of time or a continuance if circumstances make
consideration of others' views regarding the motion impracticable.
(5) Submissions opposing motions must be filed within five days
after the opposing party receives the motion.
(c) Additional pleadings. The Board will consider pleadings in
addition to those mentioned above only if the Board requests them, or if
it grants a request that it consider them.
(d) Method and date of filing. An initial filing in a request for
review of a regulation may be filed with the Office of the Clerk by
mail, by commercial or personal delivery, or by facsimile. Pleadings,
other than an initial request for a regulation review under this part,
may be filed with the Office of the Clerk by mail, by commercial or
personal delivery, by facsimile, or by e-filing in accordance with Sec.
1201.14 of this chapter. If the document was submitted by certified
mail, it is considered to have been filed on the mailing date. If it was
submitted by regular mail, it is presumed to have been filed five days
before the Office of the Clerk receives it, in the absence of evidence
contradicting that presumption. If it was delivered personally, it is
considered to have been filed on the date the Office of the Clerk
receives it. If it was submitted by facsimile, the date of the facsimile
is considered to be the filing date. If it was submitted by commercial
delivery, the date of filing is the date it was delivered to the
commercial delivery service. If it was submitted by e-filing, it is
considered to have been filed on the date of electronic submission.
(e) Extensions of time. The Board will grant a request for extension
of time only when good cause is shown.
[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994;
65 FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, 2003; 69 FR 57631,
Sept. 27, 2004]
Sec. 1203.14 Serving documents.
(a) Parties. In every case, the person requesting regulation review
must serve a copy of the request on the Director of OPM. In addition,
when the implementation of a regulation is being challenged, the
requester must also serve a copy of the request on the head of the
implementing agency. A copy of all other pleadings must be served, by
the person submitting the pleading, on each other party to the
proceeding.
(b) Method of serving documents. Pleadings may be served on parties
by
[[Page 60]]
mail, by personal delivery, by facsimile, or by commercial delivery.
Service by mail is accomplished by mailing the pleading to each party or
representative, at the party's or representative's last known address.
Service by facsimile is accomplished by transmitting the pleading by
facsimile to each party or representative. Service by personal delivery
or by commercial delivery is accomplished by delivering the pleading to
the business office or home of each party or representative and leaving
it with the party or representative, or with a responsible person at
that address. Regardless of the method of service, the party serving the
document must submit to the Board, along with the pleading, a
certificate of service as proof that the document was served on the
other parties or their representatives. The certificate of service must
list the names and addresses of the persons on whom the pleading was
served, must state the date on which the pleading was served, must state
the method (i.e., mail, personal delivery, facsimile, or commercial
delivery) by which service was accomplished, and must be signed by the
person responsible for accomplishing service.
(c) Electronic filing. Other than the initial request for a
regulation review, pleadings in a regulation review proceeding may be
filed with the Board and served upon other parties by electronic filing,
provided the requirements of Sec. 1201.14 of this chapter are
satisfied.
[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994;
68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]
Sec. 1203.15 Review of regulations on the Board's own motion.
The Board may, from time to time, review a regulation on its own
motion under 5 U.S.C. 1204(f)(1)(A). When it does so, it will publish
notice of the review in the Federal Register.
[54 FR 28658, July 6, 1989]
Sec. 1203.16 Proceedings.
The Board has substantial discretion in conducting a regulation
review under this part. It may conduct a review on the basis of the
pleadings alone, or on the basis of the pleadings along with any or all
of the following:
(a) Additional written comments;
(b) Oral argument;
(c) Evidence presented at a hearing; and/or
(d) Evidence gathered through any other appropriate procedures that
are conducted in accordance with law.
Order of the Board
Sec. 1203.21 Final order of the Board.
(a) Invalid regulation. If the Board determines that a regulation is
invalid on its face, in whole or in part, it will require any agency
affected by the order to stop complying with the regulation, in whole or
in part. In addition, it may order other remedial action that it finds
necessary.
(b) Invalidly implemented regulation. If the Board determines that a
regulation has been implemented invalidly, in whole or in part, it will
require affected agencies to terminate the invalid implementation.
(c) Corrective action. The Board may order corrective action
necessary to ensure compliance with its order. The action it may order
includes, but is not limited to, the following:
(1) Cancellation of any personnel action related to the prohibited
personnel practice;
(2) Rescission of any action related to the cancelled personnel
action;
(3) Removal of any reference, record, or document within an
employee's official personnel folder that is related to the prohibited
personnel practice;
(4) Award of back pay and benefits;
(5) Award of attorney fees;
(6) Other remedial measures to reverse the effects of a prohibited
personnel practice; and
(7) The agency's submission of a verified report of its compliance
with the Board's order.
Sec. 1203.22 Enforcement of order.
(a) Any party may ask the Board to enforce a final order it has
issued under this part. The request may be made by filing a petition for
enforcement with the Office of the Clerk of the Board and by serving a
copy of the petition on each party to the regulation review. The request
may be filed in electronic
[[Page 61]]
form, provided the requirements of Sec. 1201.14 are satisfied. The
petition must include specific reasons why the petitioning party
believes that there has been a failure to comply with the Board's order.
(b) The Board will take all action necessary to determine whether
there has been compliance with its final order. If it determines that
there has been a failure to comply with the order, it will take actions
necessary to obtain compliance.
(c) Where appropriate, the Board may initiate the enforcement
procedures described in 5 CFR 1201.183(c).
[54 FR 23632, June 2, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69
FR 57631, Sept. 27, 2004]
PART 1204_AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
Subpart A_Purpose and Scope
Sec.
1204.1 Purpose.
1204.2 Scope.
Subpart B_Procedures for Obtaining Records Under the Freedom of
Information Act
1204.11 Requests for access to Board records.
1204.12 Fees.
1204.13 Denials.
1204.14 Requests for access to confidential commercial information.
1204.15 Records of other agencies.
Subpart C_Appeals
1204.21 Submission.
1204.22 Decision on appeal.
Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-231,
and E.O. 12600.
Source: 64 FR 51039, Sept. 21, 1999, unless otherwise noted.
Subpart A_Purpose and Scope
Sec. 1204.1 Purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C.
552, as amended, by stating the procedures to follow when requesting
information from the Board, and by stating the fees that will be charged
for that information.
Sec. 1204.2 Scope.
(a) For the purpose of this part, the term record and any other term
used in reference to information includes any information that would be
a Board record subject to the requirements of 5 U.S.C. 552 when
maintained by the Board in any format including an electronic format.
All written requests for information that are not processed under part
1205 of this chapter will be processed under this part. The Board may
continue, without complying with this part, to furnish the public with
the information it has furnished in the regular course of performing its
official duties, unless furnishing the information would violate the
Privacy Act of 1974, 5 U.S.C. 552a, or another law.
(b) When the subject of the record, or the subject's representative,
requests a record from a Privacy Act system of records, as that term is
defined by 5 U.S.C. 552a(a)(5), and the Board retrieves the record by
the subject's name or other personal identifier, the Board will handle
the request under the procedures and fees shown in part 1205 of this
chapter. When a third party requests access to those records, without
the written consent of the subject of the record, the Board will handle
the request under this part.
(c) When a party to an appeal requests a copy of a tape recording,
video tape, or transcript (if one has been prepared) of a hearing that
the Board or a judge held under part 1201 or part 1209 of this chapter,
the Board will handle the request under Sec. 1201.53 of this chapter.
When someone other than a party to the appeal makes this request, the
Board will handle the request under this part.
(d) In accordance with 5 U.S.C. 552(a)(2), the Board's final
opinions and orders (including concurring and dissenting opinions),
those statements of policy and interpretations adopted by the Board and
that are not published in the Federal Register, administrative staff
manuals and instructions to staff that affect a member of the public,
and agency records processed and disclosed in response to a FOIA request
that the Board determines have been or are likely to become the subject
of additional requests for basically the same records and a general
index of those
[[Page 62]]
records, are available for public review and copying in the Board's
Headquarters' Library, 1615 M Street, NW., Washington, DC 20419-0001,
and on the Board's World Wide Web site at http://www.mspb.gov.
[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48885, Aug. 10, 2000]
Subpart B_Procedures for Obtaining Records Under the Freedom of
Information Act
Sec. 1204.11 Request for access to Board records.
(a) Sending a request. A person may request a Board record under
this part by writing to the office that has the record. If the requester
believes that the records are located in a regional or field office, the
request must be sent to that office. A list of the addresses of the
Board's regional and field offices are in appendix II of part 1201 of
this chapter and on the Board's World Wide Web site at http://
www.mspb.gov. Other requests must be sent to the Clerk of the Board,
1615 M Street, NW., Washington, DC 20419-0001. Requests sent under this
part must be clearly marked ``Freedom of Information Act Request'' on
both the envelope and the request.
(b) Description. A request must describe the records wanted in
enough detail for Board employees to locate the records with no more
than a reasonable effort. Wherever possible, a request must include
specific information about each record, such as the date, title or name,
author, recipient, and subject matter of the record. In addition, if the
request asks for records on cases decided by the Board, it must show the
title of the case, the MSPB docket number, and the date of the decision.
(c) Time limits and decisions. If a request is not properly labeled
or is sent to the wrong office, the time for processing the request will
begin when the proper office receives it. Requests to the Board's
headquarters will be decided by the Clerk of the Board. Requests to one
of the regional or field offices will be decided by the Regional
Director or Chief Administrative Judge. The Board will decide a request
within 20 workdays after the appropriate office receives it, except
under the conditions that follow.
(1) Extension of time. If ``unusual circumstances'' exist, the Board
may extend the time for deciding the request by no more than 10
additional workdays. An example of unusual circumstances could be the
need to find and retrieve records from regional or field offices or from
federal records centers or the need to search, collect and or examine a
large number of records which are demanded in a single request, or the
need to talk to another agency with a substantial interest in the
determination of the request. When the Board extends the time to decide
the request, it will inform the requester in writing and describe the
``unusual circumstances'', and it will state a date on which a decision
on the request will be made. If the ``unusual circumstances'' are such
that the Board cannot comply with the request within the time limit, the
Board will offer the requester an opportunity:
(i) To limit the request so that it may be processed within the time
limit, or
(ii) To arrange with the Board a different time frame for processing
the request or a changed request.
(2) Expedited processing. Where a requester shows a ``compelling
need'' and in other cases determined by the Board, a decision whether to
provide expedited processing of a request and notification of that
decision to the requester will be made within 10 workdays of the date of
the request. An example of a compelling need could be that a failure to
obtain the records expeditiously could reasonably be expected to be a
threat to the life or physical safety of a person or that there is
urgency to inform the public about actual or alleged Federal Government
activity by a person primarily engaged in distributing information.
Where the Board approves expeditious processing, the Board will process
the request within 5 workdays from the date of the decision to grant the
expeditious processing. If, in order to fully satisfy the request, the
Board requires the standard or additional processing time, or if it
decides that good cause for expedited processing has not been made, it
will provide written notice of
[[Page 63]]
its decision to the requester and will inform the requester of the right
to administrative and court review of the decision. A showing of a
compelling need must be made by a statement certified to be true to the
best of the requester's knowledge and belief.
[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1204.12 Fees.
(a) General. The Board will charge the requester fees for services
provided in processing requests for information. Those fees will be
charged according to the schedule in paragraph (d) of this section, and
will recover the full allowable direct costs that the Board incurs. Fees
may be charged for time spent searching for information, even if the
Board fails to locate responsive records, and even if it determines that
the information is exempt from disclosure.
(b) Definitions. (1) The term direct costs means the costs to an
agency for searching for and copying (and in the case of commercial
requesters, reviewing) documents to respond to a FOIA request. Direct
costs include, for example, the salary of each employee performing work
at the rate of $5 per quarter hour. Overhead expenses, such as costs of
space and of heating or lighting the facility in which the records are
stored, are not included in direct costs.
(2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means
either manual or automated review of Board records to locate those
records asked for, and includes all time spent looking for material in
response to a request, including page-by-page or line-by-line
identification of material within documents. Searches will be done in
the most efficient and least expensive way to limit costs for both the
Board and the requester. Searches may be done manually or by computer
using existing programming. The Board will make a reasonable effort to
search for the records in electronic form or format, except when such
effort would interfere to a large extent with the operation of the
Board's automated information system.
(3) The term duplication means the process of copying a document or
electronically maintained information in response to a FOIA request.
Copies can take the form of paper, microfilm, audio-visual materials, or
machine-readable documentation (e.g., magnetic tape or disk), among
others. The copy provided will be in a form or format requested if the
record is readily reproducible by the Board in that form or format. The
Board will make a reasonable effort to maintain its records in forms or
formats that are reproducible.
(4) The term review includes the process of examining documents to
determine whether any portion of them may be exempt from disclosure
under the FOIA, when the documents have been located in response to a
request that is for a commercial use. The term also includes processing
any documents for disclosure, e.g., doing all that is necessary to edit
them and otherwise prepare them for release. Review does not include
time spent resolving general legal or policy issues.
(5) The term commercial use request means a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In deciding whether a
requester properly belongs in this category, the Board will decide the
use the requester will make of the documents requested. Also, where the
Board has reasonable cause to doubt the use a requester will make of the
records requested, or where that use is not clear from the request, the
Board will seek additional clarification before assigning the request to
a specific category.
(6) The term educational institution means a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program or programs of scholarly research.
(7) The term noncommercial scientific institution means an
institution that is not operated on a ``commercial'' basis as that term
is used above, and that is
[[Page 64]]
operated solely for the purpose of conducting scientific research whose
results are not intended to promote any particular product or industry.
(8) The term representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term news means information
that concerns current events or that would be of current interest to the
public.
(c) Categories of requesters. There are four categories of FOIA
requesters: Commercial use requesters; educational and noncommercial
scientific institutions; representatives of the news media; and all
other requesters. To be included in the category of educational and
noncommercial scientific institutions, requesters must show that the
request is authorized by a qualifying institution and that they are
seeking the records not for a commercial use, but to further scholarly
or scientific research. To be included in the news media category, a
requester must meet the definition in paragraph (b)(8) of this section
and the request must not be made for a commercial use. To avoid
commercial use charges, requesters must show that they should be
included in a category or categories other than that of commercial use
requesters. The Board will decide the categories to place requesters for
fee purposes. It will make these determinations based on information
given by the requesters and information otherwise known to the Board.
(d) The Board will not charge a requester if the fee for any request
is less that $100 (the cost to the Board of processing and collecting
the fee).
(1) When the Board receives a request:
(i) From a commercial use requester, it will charge fees that
recover the full direct costs for searching for the information
requested, reviewing it for release at the initial request stage,
reviewing it after an appeal to determine whether other exemptions not
considered before the appeal apply to it, and copying it.
(ii) From an educational and noncommercial scientific institution
or, to the extent copying exceeds 100 pages, from a representative of
the news media, it will charge fees only for the cost of copying the
requested information.
(iii) From all other requesters, to the extent copying exceeds 100
pages and search time exceeds 2 hours, it will charge fees for the full
direct cost of searching for and copying requested records.
(2) When the Board reasonably believes that a requester or group of
requesters is attempting to divide a request into more than one request
to avoid payment of fees, the Board will combine the requests and charge
fees accordingly. The Board will not combine multiple requests on
unrelated subjects from one requester.
(3) When the Board decides that charges for a request are likely to
exceed $250, the Board will require the requester to pay the entire fee
in advance before continuing to process the request.
(4) When a requester has an outstanding fee charge or has not paid a
fee on time, the Board will require the requester to pay the full amount
of the estimated fee in advance before the Board begins to process a new
or pending request from that requester, and before it applies
administrative time limits for making a decision on the new or pending
request.
(e) Fee schedule. (1) Fees for document searches for records will be
charged at a rate of $5 per quarter hour spent by each Board employee
performing the search.
(2) Fees for computer searches for records will be $5 per quarter
hour spent by each employee operating the computer equipment and/or
developing a new inquiry or report.
(3) Fees for review at the initial administrative level to determine
whether records or portions of records are exempt from disclosure, and
for review after an appeal to determine whether the records are exempt
on other legal grounds, will be charged, for commercial use requests, at
a rate of $5 per quarter hour spent by each reviewing employee.
(4) Fees for photocopying records is 20 cents a page, the fee for
copying audio tapes is the direct cost up to $15 per cassette tape; the
fee for copying video tapes is the direct cost up to $20
[[Page 65]]
per tape; and the fee for computer printouts is 10 cents a page. The fee
for duplication of electronically maintained information in the
requester's preferred format will be $21 for copying computer tapes and
$4 for copying records on computer diskettes, if it is feasible for the
Board to reproduce records in the format requested. Fees for certified
copies of the Board's records will include a $4 per page charge for each
page displaying the Board's seal and certification. When the Board
estimates that copying costs will exceed $100, it will notify the
requester of the estimated amount unless the requester has indicated in
advance a willingness to pay an equal or higher amount.
(f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional
Director, or Chief Administrative Judge, as appropriate, will furnish
information without charge or at reduced rates if it is established that
disclosure ``is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government.'' This decision will be based on:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(iii) Whether disclosure of the requested information is likely to
contribute to public understanding of the subject of the disclosure; and
(iv) The significance of the contribution the disclosure would make
to public understanding of government operations or activities.
(2) If information is to be furnished without charge or at reduced
rates, the requester must also establish that disclosure of the
information is not primarily in the commercial interest of the
requester. This decision will be based on:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so,
(ii) Whether the identified commercial interest of the requester is
sufficiently large, in comparison with the public interest in
disclosure, that disclosure is primarily in the commercial interest of
the requester.
(3) The requester must establish eligibility for a waiver of fees or
for reduced fees. The denial of a request for waiver of fees may be
appealed under subpart C of this part.
Sec. 1204.13 Denials
(a) The Board may deny: A request for reduced fees or waiver of
fees; a request for a record, either in whole or in part; a request for
expeditious processing based on the requester's compelling need; or a
request that records be released in a specific electronic format. The
denial will be in writing, will state the reasons, and will notify the
requester of the right to appeal.
(b) If the Board applies one or more of the exemptions provided
under the FOIA to deny access to some or all of the information
requested, it will respond in writing, identifying for the requester the
specific exemption(s), providing an explanation as to why the
exemption(s) to withhold the requested information must be applied, and
providing an estimate of the amount of material that has been denied to
the requester, unless providing such an estimate would harm an interest
protected by the exemptions.
(c) The amount of information deleted will be indicated on the
released portion of the record at the place in the record where the
deletion is made, if technically feasible and unless the indication
would harm an interest protected by the exemption under which the
deletion is made.
Sec. 1204.14 Requests for access to confidential commercial information.
(a) General. Confidential commercial information provided to the
Board by a business submitter will not be disclosed in response to a
FOIA request except as required by this section.
(b) Definitions. (1) The term confidential commercial information
means records provided to the government by a submitter that are
believed to contain material exempt from release under Exemption 4 of
the Freedom of
[[Page 66]]
Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably
be expected to cause substantial competitive harm.
(2) The term submitter means any person or organization that
provides confidential commercial information to the government. The term
submitter includes, but is not limited to, corporations, state
governments, and foreign governments.
(c) Notice to business submitters. The Board will provide a business
submitter with prompt written notice of a request for its confidential
commercial information whenever such written notice is required under
paragraph (d) of this section. Exceptions to such written notice are at
paragraph (h) of this section. This written notice will either describe
the exact nature of the confidential information requested or provide
copies of the records or parts of records containing the commercial
information.
(d) When initial notice is required. (1) With respect to
confidential commercial information received by the Board before January
1, 1988, the Board will give the business submitter notice of a request
whenever:
(i) The information is less than 10 years old; or
(ii) The Board has reason to believe that releasing the information
could reasonably be expected to cause substantial competitive harm.
(2) With respect to confidential commercial information received by
the Board on or after January 1, 1988, the Board will give notice to the
business submitter whenever:
(i) The business submitter has designated the information in good
faith as commercially or financially sensitive information; or
(ii) The Board has reason to believe that releasing the information
could reasonably be expected to cause substantial competitive harm.
(3) Notice of a request for commercially confidential information
that was received by January 1, 1988, is required for a period of not
more than 10 years after the date on which the information is submitted
unless the business submitter requests, and provides justification for,
a longer specific notice period. Whenever possible, the submitter's
claim of confidentially must be supported by a statement or
certification, by an officer or authorized representative of the
company, that the information in question is confidential commercial
information and has not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, the Board will give a
business submitter a reasonable period to provide a detailed statement
of any objection to disclosure. The statement must specify all grounds
for withholding any of the information under any exemption of the
Freedom of Information Act. In addition, in the case of Exemption 4, the
statement must state why the information is considered to be a trade
secret, or to be commercial or financial information that is privileged
or confidential. Information a business submitter provides under this
paragraph may itself be subject to disclosure under the Freedom of
Information Act.
(f) Notice of intent to release information. The Board will consider
carefully a business submitter's objections and specific grounds for
claiming that the information should not be released before determining
whether to release confidential commercial information. Whenever the
Board decides to release confidential commercial information over the
objection of a business submitter, it will forward to the business
submitter a written notice that includes:
(1) A statement of the reasons for which the business submitter's
objections to the release were not sufficient;
(2) A description of the confidential commercial information to be
released; and
(3) A specified release date. The Board will forward the notice of
intent to release the information a reasonable number of days, as
circumstances permit, before the specified date upon which release is
expected. It will forward a copy of the release notice to the requester
at the same time.
(g) Notice of Freedom of Information Act lawsuit. Whenever a
requester files a lawsuit seeking to require release of business
information covered by paragraph (d) of this section, the Board will
[[Page 67]]
notify the business submitter promptly.
(h) Exceptions to notice requirements. The notice requirements of
this section do not apply when:
(1) The Board decides that the information should not be released;
(2) The information lawfully has been published or otherwise made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The disclosure is required by an agency rule that:
(i) Was adopted after notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency
that are to be released under the FOIA; or
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or a reasonable time thereafter, that release of the
information could reasonably be expected to cause substantial
competitive harm.
(5) The information requested is not designated by the submitter as
exempt from release according to agency regulations issued under this
section, when the submitter has an opportunity to do so at the time of
sending the information or a reasonable time thereafter, unless the
agency has good reason to believe that disclosure of the information
would result in competitive harm; or
(6) The designation made by the submitter according to Board
regulations appears obviously frivolous; except that, in such case, the
Board must provide the submitter with written notice of any final
administrative release decision within a reasonable period before the
stated release date.
Sec. 1204.15 Records of other agencies.
Requests for Board records that were created by another agency may,
in appropriate circumstances, be referred to that agency for discussion
or processing. In these instances, the Board will notify the requester.
Subpart C_Appeals
Sec. 1204.21 Submission.
(a) A person may appeal the following actions, or failure to act by
the Clerk of the Board, a Regional Director, or Chief Administrative
Judge:
(1) A denial of access to agency records;
(2) A denial of a request for a waiver or reduced fees;
(3) A decision that it is technically not possible to reproduce
electronically maintained information in the requester's preferred
format;
(4) A denial of a request for expedited processing of information
under this part; or
(5) A failure to decide a request for expedited processing within 10
workdays from the date of the request.
(b) Appeals must be filed with the Chairman, Merit Systems
Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within
10 workdays from the date of the denial. Any appeal must include a copy
of the initial request, a copy of the letter denying the request, and a
statement of the reasons why the requester believes the denying employee
erred.
[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1204.22 Decision on appeal.
A decision on an appeal will be made within 20 workdays after the
appeal is received. A decision not to provide expeditious processing of
a request will be made within 15 workdays after the appeal is received.
The decision will be in writing and will contain the reasons for the
decision and information about the appellant's right to seek court
review of the denial.
PART 1205_PRIVACY ACT REGULATIONS--Table of Contents
Subpart A_General Provisions
Sec.
1205.1 Purpose.
1205.2 Policy and scope.
1205.3 Definitions.
1205.4 Disclosure of Privacy Act records.
[[Page 68]]
Subpart B_Procedures for Obtaining Records
1205.11 Access to Board records.
1205.12 Time limits and determinations.
1205.13 Identification.
1205.14 Granting access.
1205.15 Denying access.
1205.16 Fees.
Subpart C_Amendment of Records
1205.21 Request for amendment.
1205.22 Action on request.
1205.23 Time limits.
Subpart D_Appeals
1205.31 Submitting appeal.
1205.32 Decision on appeal.
Authority: 5 U.S.C. 552a and 1204.
Source: 64 FR 51043, Sept. 21, 1999, unless otherwise noted.
Subpart A_General Provisions
Sec. 1205.1 Purpose.
This subpart implements the Privacy Act of 1974, 5 U.S.C. 552a,
(``the Act'') by stating the procedures by which individuals may
determine the existence of, seek access to, and request amendment of
Board records concerning themselves, and by stating the requirements
that apply to Board employees' use and disclosure of those records.
Sec. 1205.2 Policy and scope.
The Board's policy is to apply these regulations to all records that
can be retrieved from a system of records under the Board's control by
using an individual's name or by using a number, symbol, or other way to
identify the individual. These regulations, however, do not govern the
rights of the parties in adversary proceedings before the Board to
obtain discovery from adverse parties; those rights are governed by part
1201 and part 1209 of this chapter. These regulations also are not meant
to allow the alteration, either before or after the Board has issued a
decision on an appeal, of evidence presented during the Board's
adjudication of the appeal.
Sec. 1205.3 Definitions.
The definitions of 5 U.S.C. 552a apply to this part. In addition, as
used in this part:
(a) Inquiry means a request by an individual regarding whether the
Board has a record that refers to that individual.
(b) Request for access means a request by an individual to look at
or copy a record.
(c) Request for amendment means a request by an individual to change
the substance of a particular record by addition, deletion, or other
correction.
(d) Requester means the individual requesting access to or amendment
of a record. The individual may be either the person to whom the
requested record refers, a legal guardian acting on behalf of the
individual, or a representative designated by that individual.
Sec. 1205.4 Disclosure of Privacy Act records.
(a) Except as provided in 5 U.S.C. 552a(b), the Board will not
disclose any personal record information from systems of records it
maintains to any individual other than the individual to whom the record
refers, or to any other agency, without the express written consent of
the individual to whom the record refers, or his or her representative
or attorney.
(b) The Board's staff will take necessary steps, in accordance with
the law and these regulations, to protect the security and integrity of
the records and the personal privacy interests of the subjects of the
records.
Subpart B_Procedures for Obtaining Records
Sec. 1205.11 Access to Board records.
(a) Submission of request. Inquiries or requests for access to
records must be submitted to the appropriate regional or field office of
the Board, or to the Clerk of the Board, U.S. Merit Systems Protection
Board, 1615 M Street, NW., Washington, DC 20419-0001. If the requester
has reason to believe that the records are located in a regional or
field office, the request must be submitted to that office. Requests
submitted to the regional or field office must be addressed to the
Regional Director or Chief Administrative Judge
[[Page 69]]
at the appropriate regional or field office listed in appendix II of 5
CFR part 1201.
(b) Form. Each submission must contain the following information:
(1) The name, address, and telephone number of the individual to
whom the record refers;
(2) The name, address, and telephone number of the individual making
the request if the requester is someone other than the person to whom
the record refers, such as a legal guardian or an attorney, along with
evidence of the relationship. Evidence of the relationship may consist
of an authenticated copy of:
(i) The birth certificate of the minor child, and
(ii) The court document appointing the individual legal guardian, or
(iii) An agreement for representation signed by the individual to
whom the record refers;
(3) Any additional information that may assist the Board in
responding to the request, such as the name of the agency that may have
taken an action against an individual, or the docket number of the
individual's case;
(4) The date of the inquiry or request;
(5) The inquirer's or requester's signature; and
(6) A conspicuous indication, both on the envelope and the letter,
that the inquiry is a ``PRIVACY ACT REQUEST''.
(c) Identification. Each submission must follow the identification
requirements stated in Sec. 1205.13 of this part.
(d) Payment. Records usually will not be released until fees have
been received.
[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1205.12 Time limits and determinations.
(a) Board determinations. The Board will acknowledge the request for
access to records and make a determination on whether to grant it within
20 workdays after it receives the request, except under the unusual
circumstances described below:
(1) When the Board needs to obtain the records from other Board
offices or a Federal Records Center;
(2) When it needs to obtain and examine a large number of records;
(3) When it needs to consult with another agency that has a
substantial interest in the records requested; or
(4) When other extenuating circumstances prevent the Board from
processing the request within the 20-day period.
(b) Time extensions. When unusual circumstances exist, the Board may
extend the time for making a determination on the request for no more
than 10 additional workdays. If it does so, it will notify the requester
of the extension.
(c) Improper request. If a request or an appeal is not properly
labeled, does not contain the necessary identifying information, or is
submitted to the wrong office, the time period for processing the
request will begin when the correct official receives the properly
labeled request and the necessary information.
(d) Determining officials. The Clerk of the Board, a Regional
Director, or a Chief Administrative Judge will make determinations on
requests.
[64 FR 51043, Sept. 21, 1999; 64 FR 71267, Dec. 21, 1999]
Sec. 1205.13 Identification.
(a) In person. Each requester must present satisfactory proof of
identity. The following items, which are listed in order of the Board's
preference, are acceptable proof of the requester's identity when the
request is made in person:
(1) A document showing the requester's photograph;
(2) A document showing the requester's signature; or
(3) If the items described in paragraphs (a)(1) and (2) of the
section are not available, a signed statement in which the requester
asserts his or her identity and acknowledges understanding that
misrepresentation of identity in order to obtain a record is a
misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C.
552a(i)(3).
(b) By mail. The identification of a requester making a request by
mail must be certified by a notary public or equivalent official or
contain other information to identify the requester. Information could
be the date of birth of
[[Page 70]]
the requester and some item of information in the record that only the
requester would be likely to know.
(c) Parents of minors, legal guardians, and representatives. Parents
of minors, legal guardians, and representatives must submit
identification under paragraph (a) or (b) of this section. Additionally,
they must present an authenticated copy of:
(1) The minor's birth certificate, and
(2) The court order of guardianship, or
(3) The agreement of representation, where appropriate.
Sec. 1205.14 Granting access.
(a) The Board may allow a requester to inspect records through
either of the following methods:
(1) It may permit the requester to inspect the records personally
during normal business hours at a Board office or other suitable Federal
facility closer to the requester; or
(2) It may mail copies of the records to the requester.
(b) A requester seeking personal access to records may be
accompanied by another individual of the requester's choice. Under those
circumstances, however, the requester must sign a statement authorizing
the discussion and presentation of the record in the accompanying
individual s presence.
Sec. 1205.15 Denying access.
(a) Basis. In accordance with 5 U.S.C. 552a(k)(2), the Board may
deny access to records that are of an investigatory nature and that are
compiled for law enforcement purposes. Those requests will be denied
only where access to them would otherwise be unavailable under Exemption
(b)(7) of the Freedom of Information Act.
(b) Form. All denials of access under this section will be made in
writing and will notify the requester of the right to judicial review.
Sec. 1205.16 Fees.
(a) No fees will be charged except for making copies of records.
(b) Photocopies of records duplicated by the Board will be subject
to a charge of 20 cents a page.
(c) If the fee to be assessed for any request is less than $100 (the
cost to the Board of processing and collecting the fee), no charge will
be made to the requester.
(d) Fees for copying audio tapes and computer records will be
charged at a rate representing the actual costs to the Board, as shown
in paragraphs (d)(1) through (d)(3) of this section.
(1) Audio tapes will be provided at a charge not to exceed $15 for
each cassette tape.
(2) Computer printouts will be provided at a charge of 10 cents a
page.
(3) Records reproduced on computer tapes, computer diskettes, or
other electronic media, will be provided at the actual cost to the
Board.
(e) The Board will provide one copy of the amended parts of any
record it amends free of charge as evidence of the amendment.
Subpart C_Amendment of Records
Sec. 1205.21 Request for amendment.
A request for amendment of a record must be submitted to the
Regional Director or Chief Administrative Judge of the appropriate
regional or field office, or to the Clerk of the Board, U.S. Merit
Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001,
depending on which office has custody of the record. The request must be
in writing, must be identified conspicuously on the outside of the
envelope and the letter as a ``PRIVACY ACT REQUEST,'' and must include
the following information:
(a) An identification of the record to be amended;
(b) A description of the amendment requested; and
(c) A statement of the basis for the amendment, along with
supporting documentation, if any.
[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1205.22 Action on request.
(a) Amendment granted. If the Board grants the request for
amendment, it will notify the requester and provide him or her with a
copy of the amendment.
(b) Amendment denied. If the Board denies the request for amendment
in
[[Page 71]]
whole or in part, it will provide the requester with a written notice
that includes the following information:
(1) The basis for the denial; and
(2) The procedures for appealing the denial.
Sec. 1205.23 Time limits.
The Clerk of the Board, Regional Director, or Chief Administrative
Judge will acknowledge a request for amendment within 10 workdays of
receipt of the request in the appropriate office except under the
unusual circumstances described in paragraphs (a)(1) through (a)(4) of
Sec. 1205.12 of this part.
Subpart D_Appeals
Sec. 1205.31 Submitting appeal.
(a) A partial or complete denial, by the Clerk of the Board, by the
Regional Director, or by the Chief Administrative Judge, of a request
for amendment may be appealed to the Chairman, Merit Systems Protection
Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays
from the date of the denial.
(b) Any appeal must be in writing, must be clearly and conspicuously
identified as a Privacy Act appeal on both the envelope and letter, and
must include:
(1) A copy of the original request for amendment of the record;
(2) A copy of the denial; and
(3) A statement of the reasons why the original denial should be
overruled.
[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1205.32 Decision on appeal.
(a) The Chairman will decide the appeal within 30 workdays unless
the Chairman determines that there is good cause for extension of that
deadline. If an appeal is improperly labeled, does not contain the
necessary information, or is submitted to an inappropriate official, the
time period for processing that appeal will begin when the Chairman
receives the appeal and the necessary information.
(b) If the request for amendment of a record is granted on appeal,
the Chairman will direct that the amendment be made. A copy of the
amended record will be provided to the requester.
(c) If the request for amendment of a record is denied, the Chairman
will notify the requester of the denial and will inform the requester
of:
(1) The basis for the denial;
(2) The right to judicial review of the decision under 5 U.S.C.
552a(g)(1)(A); and
(3) The right to file a concise statement with the Board stating the
reasons why the requester disagrees with the denial. This statement will
become a part of the requester's record.
PART 1206_OPEN MEETINGS--Table of Contents
Subpart A_Purpose and Policy
Sec.
1206.1 Purpose.
1206.2 Policy.
1206.3 Definitions.
Subpart B_Procedures
1206.4 Notice of meeting.
1206.5 Change in meeting plans after notice.
1206.6 Decision to close meeting.
1206.7 Record of meetings.
1206.8 Providing information to the public.
1206.9 Procedures for expedited closing of meetings.
Subpart C_Conduct of Meetings
1206.11 Meeting place.
1206.12 Role of observers.
Authority: 5 U.S.C. 552b.
Source: 54 FR 20367, May 11, 1989, unless otherwise noted.
Subpart A_Purpose and Policy
Sec. 1206.1 Purpose.
The purpose of this part is to prescribe the procedures by which the
Board will conduct open meetings in accordance with the Government in
the Sunshine Act (5 U.S.C. 552b) (``the Act'').
Sec. 1206.2 Policy.
The Board will provide the public with the fullest practicable
information regarding its decision-making processes, while protecting
individuals' rights and the Board's ability to carry out its
responsibilities. Meetings at
[[Page 72]]
which the Board members jointly conduct or dispose of official business
are presumptively open to the public. The Board will close those
meetings in whole or in part only in accordance with the exemptions
provided under 5 U.S.C. 552b(c), and only when doing so is in the public
interest.
Sec. 1206.3 Definitions.
The following definitions apply to this part:
(a) Meeting means deliberations of at least two Board members that
determine or result in the joint conduct of official Board business.
(b) Member means one of the members of the Merit Systems Protection
Board.
Subpart B_Procedures
Sec. 1206.4 Notice of meeting.
(a) Notice of a Board meeting will be published in the Federal
Register at least one week before the meeting. Each notice will include
the following information:
(1) The time of the meeting;
(2) The place where the meeting will be held;
(3) The subject and agenda of the meeting;
(4) Whether the meeting is to be open to the public or closed; and
(5) The name and telephone number of a Board official responsible
for receiving inquiries regarding the meeting.
(b) The Board, by majority vote, may provide less than one week's
notice. When it does so, however, it will provide notice of the meeting
at the earliest practicable time.
Sec. 1206.5 Change in meeting plans after notice.
(a) After notice of a meeting has been published, the Board may
change the time or place of the meeting only if it announces the change
publicly at the earliest practicable time.
(b) After notice of a meeting has been published, the Board may not
change either the subject matter of the meeting or the decision that the
meeting will be open to the public or closed unless both of the
following conditions are met:
(1) By majority, recorded vote, the Board members determine that
Board business requires the change and that no earlier announcement of
the change was possible; and
(2) Notice of the change, and of the individual Board members' vote,
is published in the Federal Register at the earliest practicable time.
Sec. 1206.6 Decision to close meeting.
(a) Basis. The Board, by majority vote, may decide to close a
meeting in accordance with the provisions of 5 U.S.C. 552b(c)(1) to
552b(c)(10) when closing the meeting is in the public interest.
(b) General Counsel certification. For every meeting that is closed
to the public in whole or in part, the General Counsel will certify that
closing the meeting is proper, and will state the basis for that
opinion.
(c) Vote. Within one day after voting to close a meeting, the Board
will make publicly available a record reflecting the vote of each
member. In addition, within one day after any vote to close a portion or
portions of a meeting to the public, the Board will make publicly
available a full written explanation of its decision to close the
meeting, together with a list naming all persons expected to attend the
meeting and identifying their affiliation, unless that disclosure would
reveal the information that the meeting was closed to protect.
Sec. 1206.7 Record of meetings.
(a) Closed Meeting. When the Board has decided to close a meeting in
whole or in part, it will maintain the following record:
(1) A transcript or recording of the proceeding;
(2) A copy of the General Counsel's certification under Sec.
1206.6(b) of this part;
(3) A statement from the presiding official specifying the time and
place of the meeting and naming the persons present; and
(4) A record (which may be part of the transcript) of all votes and
all documents considered at the meeting.
(b) Open meeting. Transcripts or other records will be made of all
open meetings of the Board. Those records will be
[[Page 73]]
made available upon request at a fee representing the Board's actual
cost of making them available.
[54 FR 20367, May 11, 1989, as amended at 54 FR 28664, July 6, 1989]
Sec. 1206.8 Providing information to the public.
Information available to the public under this part will be made
available by the Office of the Clerk of the Board, U.S. Merit Systems
Protection Board, 1615 M Street, NW., Washington, DC 20419. Individuals
or organizations with a special interest in activities of the Board may
ask the Office of the Clerk to have them placed on a mailing list for
receipt of information available under this part.
[54 FR 20367, May 11, 1989, as amended at 65 FR 48886, Aug. 10, 2000]
Sec. 1206.9 Procedures for expedited closing of meetings.
Instead of following the procedures described in Sec. Sec. 1206.4
through 1206.8 of this part, and in Sec. Sec. 1206.11 and 1206.12, the
Board may expedite the closing of its meetings under the following
conditions by using the following procedures:
(a) Finding. (1) Most regular Board business consists of reviewing
initial decisions in cases adjudicated after an opportunity for a
hearing has been provided. Based on a review of this circumstance, the
legislative history of the Civil Service Reform Act of 1978 (Pub. L. 95-
454), the Government in the Sunshine Act (5 U.S.C. 552b), and the
Board's regulations at 5 CFR part 1201, the Board finds that a majority
of its meetings may properly be closed to the public under 5 U.S.C.
552b(c)(10) and 552b(d)(4).
(2) Absent a compelling public interest to the contrary, meetings or
portions of meetings that can be expected to be closed under these
procedures include meetings held to consider the following: Petitions
for review or cases that have been or may be reopened under 5 CFR
1201.114 through 1201.117; proposals to take action against
administrative law judges under 5 CFR 1201.131 through 1201.136; and
actions brought by the Special Counsel under 5 CFR 1201.129.
(b) Announcement. The Board will announce publicly, at the earliest
practicable time, the time, place, and subject matter of meetings or
portions of meetings that are closed under this provision.
(c) Procedure for closing meetings under this section. At the
beginning of a meeting or portion of a meeting that is to be closed
under this section, the Board may, by recorded vote of two of its
members, decide to close the meeting or a portion of it to public
observation. The Board may take this action, however, only after it
receives a certification by the General Counsel under Sec. 1206.6(b) of
this part.
(d) Record Availability. When the Board has closed a meeting or
portion of a meeting under this paragraph, it will make the following
available as soon as practicable:
(1) A written record reflecting the vote of each participating
member of the Board with respect to closing the meeting; and
(2) The General Counsel certification under Sec. 1206.6(b).
Subpart C_Conduct of Meetings
Sec. 1206.11 Meeting place.
The Board will hold open meetings in meeting rooms designated in the
public announcements of those meetings. Whenever the number of observers
is greater than can be accommodated in the designated meeting room,
however, it will make alternative facilities available to the extent
possible.
Sec. 1206.12 Role of observers.
The public may attend open meetings for the sole purpose of
observation. Observers may not participate in the meetings unless they
are expressly invited to do so. They also may not create distractions
that interfere with the conduct and disposition of Board business, and
they may be asked to leave if they do so. Observers of meetings that are
partially closed must leave the meeting room when they are asked to do
so.
[[Page 74]]
PART 1207_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD--Table
of Contents
Sec.
1207.101 Purpose.
1207.102 Application.
1207.103 Definitions.
1207.104-1207.109 [Reserved]
1207.110 Notice.
1207.111-1207.119 [Reserved]
1207.120 General prohibitions against discrimination.
1207.121-1207.129 [Reserved]
1207.130 Employment.
1207.131-1207.139 [Reserved]
1207.140 Program accessibility: Discrimination prohibited.
1207.141-1207.149 [Reserved]
1207.150 Program accessibility: Existing facilities.
1207.151 Program accessibility: New construction and alterations.
1207.152-1207.159 [Reserved]
1207.160 Communications.
1207.161-1207.169 [Reserved]
1207.170 Compliance procedures.
1207.171-1207.999 [Reserved]
Authority: 29 U.S.C. 794.
Source: 70 FR 24293, May 9, 2005, unless otherwise noted.
Sec. 1207.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of disability in
programs or activities conducted by Executive agencies or the United
States Postal Service.
Sec. 1207.102 Application.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with disabilities in the United
States.
Sec. 1207.103 Definitions.
(a) Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
(b) Auxiliary aids means services or devices that enable persons
with impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDDs), interpreters, notetakers, written
materials, and other similar services and devices.
(c) Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
(d) Days means calendar days, unless otherwise stated.
(e) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
(f) Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
(g) Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
(h) Individual with a disability means any person who has a physical
or mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. The following phrases used in this definition are
further defined as follows:
[[Page 75]]
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(iii) Also, physical and mental impairment includes, but is not
limited to, such diseases and conditions as orthopedic, visual, speech,
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, and drug addiction and alcoholism.
(2) Major life activities include functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (i) of this
definition but is treated by the agency as having such an impairment.
(i) Qualified individual with a disability means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with a disability who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) Qualified disabled person as that term is defined for purposes
of employment in 29 CFR 1614.203, which is made applicable to this part
by Sec. 1207.130.
(j) Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Sec. Sec. 1207.104-1207.109 [Reserved]
Sec. 1207.110 Notice.
The agency shall make available to employees, applicants,
participants, and other interested parties such information regarding
the provisions of this part and its applicability to the programs or
activities conducted by the agency, and make such information available
to them in such manner as the head of the agency finds necessary to
apprise such persons of the protections against discrimination assured
them by section 504 and this part.
Sec. Sec. 1207.111-1207.119 [Reserved]
Sec. 1207.120 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis of
such disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
[[Page 76]]
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability--
(i) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is necessary
to provide qualified individuals with disabilities with aid, benefits,
or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) A qualified individual with a disability may not be excluded
from participation in any of the agency's programs or activities, even
though permissibly separate or different programs or activities exist.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with disabilities.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the agency, or;
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may the
agency establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by the
agency are not, themselves, covered by this part.
(c) The exclusion of nondisabled persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with disabilities or the exclusion of a specific class of individuals
with disabilities from a program limited by Federal statute or Executive
order to a different class of individuals with disabilities is not
prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
Sec. Sec. 1207.121-1207.129 [Reserved]
Sec. 1207.130 Employment.
No qualified individual with a disability shall, on the basis of
such disability, be subject to discrimination in employment under any
program or activity conducted by the agency. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity
Commission in 29 CFR part
[[Page 77]]
1614, shall apply to employment in federally conducted programs or
activities.
Sec. Sec. 1207.131-1207.139 [Reserved]
Sec. 1207.140 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1207.150, no qualified
individual with disabilities shall, because the agency's facilities are
inaccessible to or unusable by individuals with disabilities, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. Sec. 1207.141-1207.149 [Reserved]
Sec. 1207.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This
paragraph does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1207.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with disabilities. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with disabilities in the most integrated setting
appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 1207.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with disabilities. In cases where a physical alteration to an historic
property is not required because of Sec. 1207.150(a)(2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with disabilities into
or through portions of historic properties
[[Page 78]]
that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
Sec. 1207.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with disabilities. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
Sec. Sec. 1207.152-1207.159 [Reserved]
Sec. 1207.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with a disability an equal opportunity
to participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with a disability.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with parties by telephone,
telecommunication devices for deaf persons or equally effective
telecommunication systems shall be used to communicate with persons with
impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1207.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with disabilities receive the benefits and
services of the program or activity.
Sec. Sec. 1207.161-1207.169 [Reserved]
Sec. 1207.170 Compliance procedures.
(a) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(b) Allegations of discrimination in the adjudication of a Board
case. (1) When a party to a case pending before any of the Board's
judges believes he or she has been subjected to discrimination on the
basis of disability in the adjudication of the case, the party may raise
the allegation in a pleading filed with the judge and served on all
other
[[Page 79]]
parties in accordance with 5 CFR 1201.26(b)(2).
(2) An allegation of discrimination in the adjudication of a Board
case must be raised within 10 days of the alleged act of discrimination
or within 10 days from the date the complainant should reasonably have
known of the alleged discrimination. If the complainant does not submit
a complaint within that time period, it will be dismissed as untimely
filed unless a good reason for the delay is shown.
(3) The judge to whom the case is assigned shall decide the merits
of any timely allegation that is raised at this stage of adjudication,
and shall make findings and conclusions regarding the allegation either
in an interim order or in the initial decision, recommended decision, or
recommendation. Any request for reconsideration of the administrative
judge's decision on the disability discrimination claim must be filed in
accordance with the requirements of 5 CFR 1201.114 and 1201.115.
(4) If the judge to whom the case was assigned has issued the
initial decision, recommended decision, or recommendation by the time
the party learns of the alleged discrimination, the party may raise the
allegation in a petition for review, cross petition for review, or
response to the petition or cross petition.
(5) The Board shall decide the merits of any timely allegation that
is raised at this stage of adjudication in a final decision.
(c) All complaints of discrimination on the basis of disability in
programs and activities conducted by the agency, except for those
described in paragraphs (a) and (b) of this section, shall be filed
under the procedures described in this paragraph.
(1) Who may file. Any person who believes that he or she has been
subjected to discrimination prohibited by this part, or authorized
representative of such person, may file a complaint. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or the authorized representative of a member of that class may file a
complaint. A charge on behalf of a person or member of a class of
persons claiming to be aggrieved may be made by any person, agency or
organization.
(2) Where and when to file. Complaints shall be filed with the
Director, Office of Equal Employment Opportunity (EEO Director), Merit
Systems Protection Board, 1615 M Street, NW., Washington DC 20419, or e-
mailed to equalopportunity@mspb.gov, within thirty-five (35) calendar
days of the alleged act of discrimination. A complaint filed by personal
delivery is considered filed on the date it is received by the EEO
Director. The date of filing by facsimile or e-mail is the date the
facsimile or e-mail is sent. The date of filing by mail is determined by
the postmark date; if no legible postmark date appears on the mailing,
the submission is presumed to have been mailed five days (excluding days
on which the Board is closed for business) before its receipt. The date
of filing by commercial overnight delivery is the date the document was
delivered to the commercial overnight delivery service. The agency shall
extend the time period for filing a complaint upon a showing of good
cause. For example, the agency shall extend this time limit if a
complainant shows that he or she was prevented by circumstances beyond
his or her control from submitting the matter within the time limits.
(3) Acceptance of complaint. (i) The agency shall accept a complete
complaint that is filed in accordance with paragraph (c) of this section
and over which it has jurisdiction. The EEO Director shall notify the
complainant of receipt and acceptance of the complaint.
(ii) If the EEO Director receives a complaint that is not complete,
he or she shall notify the complainant that additional information is
needed. If the complainant fails to complete the complaint and return it
to the EEO Director within 15 days of his or her receipt of the request
for additional information, the EEO Director shall dismiss the complaint
with prejudice and shall so inform the complainant.
(4) Within 60 days of the receipt of a complete complaint for which
it has jurisdiction, the EEO Director shall notify the complainant of
the results of the investigation in an initial decision containing--
[[Page 80]]
(i) Findings of fact and conclusions of law;
(ii) When applicable, a description of a remedy for each violation
found; and
(iii) A notice of the right to appeal.
(5) Any appeal of the EEO Director's initial decision must be filed
with the Chairman of the Board, Merit Systems Protection Board, 1615 M
Street, NW., Washington, DC 20419 by the complainant within 35 days of
the date the EEO Director issues the decision required by Sec.
1207.170(c)(4). The agency may extend this time for good cause when a
complainant shows that circumstances beyond his or her control prevented
the filing of an appeal within the prescribed time limit. An appeal
filed by personal delivery is considered filed on the date it is
received by the Chairman. The date of filing by facsimile is the date of
the facsimile. The date of filing by mail is determined by the postmark
date; if no legible postmark date appears on the mailing, the submission
is presumed to have been mailed five days (excluding days on which the
Board is closed for business) before its receipt. The date of filing by
commercial overnight delivery is the date the document was delivered to
the commercial overnight delivery service. The appeal should be clearly
marked ``Appeal of Section 504 Decision'' and must contain specific
objections explaining why the person believes the initial decision was
factually or legally wrong. A copy of the initial decision being
appealed should be attached to the appeal letter.
(6) A timely appeal shall be decided by the Chairman unless the
Chairman determines, in his or her discretion, that the appeal raises
policy issues and that the nature of those policy issues warrants a
decision by the full Board. The full Board shall then decide such
appeals.
(7) The Chairman shall notify the complainant of the results of the
appeal within sixty (60) days of the receipt of the request. If the
Chairman determines that he or she needs additional information from the
complainant, he or she shall have sixty (60) days from the date he or
she receives the additional information to make his or her determination
on the appeal.
(8) The time limit stated in paragraph (c)(2) may be extended by the
EEO Director to a period of up to 180 days, and may be extended further
with the permission of the Assistant Attorney General. The time limit
stated in paragraph (c)(5) may be extended by the Chairman to a period
of up to 180 days, and may be extended further with the permission of
the Assistant Attorney General.
(9) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(d) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with disabilities.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate entity.
Sec. Sec. 1207.171-1207.999 [Reserved]
PART 1208_PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES
EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT
OPPORTUNITIES ACT--Table of Contents
Subpart A_Jurisdiction and Definitions
Sec.
1208.1 Scope.
1208.2 Jurisdiction.
1208.3 Application of 5 CFR part 1201.
1208.4 Definitions.
Subpart B_USERRA Appeals
1208.11 Choice of procedure under USERRA; exhaustion requirement.
1208.12 Time of filing.
1208.13 Content of appeal; request for hearing.
1208.14 Representation by Special Counsel.
1208.15 Remedies.
[[Page 81]]
1208.16 Appeals under another law, rule, or regulation.
Subpart C_VEOA Appeals
1208.21 VEOA exhaustion requirement.
1208.22 Time of filing.
1208.23 Content of appeal; request for hearing.
1208.24 Election to terminate MSPB proceeding.
1208.25 Remedies.
1208.26 Appeals under another law, rule, or regulation.
Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.
Source: 65 FR 5412, Feb. 4, 2000, unless otherwise noted.
Subpart A_Jurisdiction and Definitions
Sec. 1208.1 Scope.
This part governs appeals filed with the Board under the provisions
of 38 U.S.C. 4324, as enacted by the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, as
amended, or under the provisions of 5 U.S.C. 3330a, as enacted by the
Veterans Employment Opportunities Act of 1998 (VEOA), Public Law 105-
339. With respect to USERRA appeals, this part applies to any appeal
filed with the Board on or after October 13, 1994, without regard as to
whether the alleged violation occurred before, on, or after October 13,
1994. With respect to VEOA appeals, this part applies to any appeal
filed with the Board which alleges that a violation occurred on or after
October 31, 1998.
Sec. 1208.2 Jurisdiction.
(a) USERRA. Under 38 U.S.C. 4324, a person entitled to the rights
and benefits provided by chapter 43 of title 38, United States Code, may
file an appeal with the Board alleging that a Federal agency employer or
the Office of Personnel Management has failed or refused, or is about to
fail or refuse, to comply with a provision of that chapter (other than a
provision relating to benefits under the Thrift Savings Plan for Federal
employees). In general, the provisions of chapter 43 of title 38 that
apply to Federal employees guarantee various reemployment rights
following a period of service in a uniformed service, provided the
employee satisfies the requirements for coverage under that chapter. In
addition, chapter 43 of title 38 prohibits discrimination based on a
person's service--or application or obligation for service--in a
uniformed service (38 U.S.C. 4311). This prohibition applies with
respect to initial employment, reemployment, retention in employment,
promotion, or any benefit of employment.
(b) VEOA. Under 5 U.S.C. 3330a, a preference eligible who alleges
that a Federal agency has violated his rights under any statute or
regulation relating to veterans' preference may file an appeal with the
Board, provided that he has satisfied the statutory requirements for
first filing a complaint with the Secretary of Labor and allowing the
Secretary at least 60 days to attempt to resolve the complaint.
Sec. 1208.3 Application of 5 CFR part 1201.
Except as expressly provided in this part, the Board will apply
subparts A (Jurisdiction and Definitions), B (Procedures for Appellate
Cases), C (Petitions for Review of Initial Decisions), and F
(Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to
appeals governed by this part. The Board will apply the provisions of
subpart H (Attorney Fees, and Litigation Expenses, Where Applicable),
Consequential Damages, and Compensatory Damages) of 5 CFR part 1201
regarding awards of attorney fees to appeals governed by this part.
Sec. 1208.4 Definitions.
(a) Appeal. ``Appeal'' means a request for review of an agency
action (the same meaning as in 5 CFR Sec. 1201.4(f)) and includes a
``complaint'' or ``action'' as those terms are used in USERRA (38 U.S.C.
4324) and a ``complaint'' or ``appeal'' as those terms are used in VEOA
(5 U.S.C. 3330a).
(b) Preference eligible. ``Preference eligible'' is defined in 5
U.S.C. 2108.
(c) USERRA appeal. ``USERRA appeal'' means an appeal filed under 38
U.S.C. 4324, as enacted by the Uniformed Services Employment and
Reemployment Rights Act of 1994 (Public
[[Page 82]]
Law 103-353), as amended. The term includes an appeal that alleges a
violation of a predecessor statutory provision of chapter 43 of title
38, United States Code.
(d) VEOA appeal. ``VEOA appeal'' means an appeal filed under 5
U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act of
1998 (Public Law 105-339).
Subpart B_USERRA Appeals
Sec. 1208.11 Choice of procedure under USERRA; exhaustion requirement.
(a) Choice of procedure. An appellant may file a USERRA appeal
directly with the Board under this subpart or may file a complaint with
the Secretary of Labor under 38 U.S.C. 4322.
(b) Exhaustion requirement. If an appellant files a complaint with
the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file
a USERRA appeal with the Board until the Secretary notifies the
appellant in accordance with 38 U.S.C. 4322(e) that the Secretary's
efforts have not resolved the complaint. An appellant who seeks
assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not
file a complaint with the Secretary under 38 U.S.C. 4322 is not subject
to the exhaustion requirement of this paragraph.
(c) Appeals after exhaustion of Department of Labor procedure. When
an appellant receives notice from the Secretary of Labor in accordance
with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved
the complaint, the appellant may file a USERRA appeal directly with the
Board or may ask the Secretary to refer the complaint to the Special
Counsel. If the Special Counsel agrees to represent the appellant, the
Special Counsel may file a USERRA appeal directly with the Board. If the
Special Counsel does not agree to represent the appellant, the appellant
may file a USERRA appeal directly with the Board.
[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]
Sec. 1208.12 Time of filing.
Under chapter 43 of title 38, United States Code, there is no time
limit for filing a USERRA appeal with the Board. However, the Board
encourages appellants to file a USERRA appeal as soon as possible after
the date of the alleged violation or, if a complaint is filed with the
Secretary of Labor, as soon as possible after receiving notice from the
Secretary in accordance with 38 U.S.C. 4322(e) that the Secretary's
efforts have not resolved the complaint, or, if the Secretary has
referred the complaint to the Special Counsel and the Special Counsel
does not agree to represent the appellant, as soon as possible after
receiving the Special Counsel's notice.
[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]
Sec. 1208.13 Content of appeal; request for hearing.
(a) Content. A USERRA appeal may be in any format, including letter
form, but must contain the following:
(1) The nine (9) items or types of information required in 5 CFR
1201.24(a)(1) through (a)(9);
(2) Evidence or argument that the appellant has performed service in
a uniformed service, including the dates of such service (or, where
applicable, has applied for or has an obligation to perform such
service), and that the appellant otherwise satisfies the requirements
for coverage under chapter 43 of title 38, United States Code;
(3) A statement describing in detail the basis for the appeal, that
is, the protected right or benefit that was allegedly denied, including
reference to the provision(s) of chapter 43 of title 38, United States
Code, allegedly violated if possible.
(4) If the appellant filed a complaint with the Secretary of Labor
under 38 U.S.C. 4322(a), evidence of notice under 38 U.S.C. 4322(e) that
the Secretary's efforts have not resolved the complaint (a copy of the
Secretary's notice satisfies this requirement); and
(5) If the appellant's complaint was referred to the Special Counsel
and the appellant has received notice that the Special Counsel will not
represent the appellant before the Board, evidence of the Special
Counsel's notice (a copy of the Special Counsel's notice satisfies this
requirement).
(b) Request for hearing. An appellant must submit any request for a
hearing with the USERRA appeal, or within
[[Page 83]]
any other time period the judge sets. A hearing may be provided to the
appellant once the Board's jurisdiction over the appeal is established.
The judge may also order a hearing if necessary to resolve issues of
jurisdiction. The appellant has the burden of proof with respect to
issues of jurisdiction (5 CFR 1201.56(a)(2)(i)).
(c) Electronic filing. An appeal may be filed electronically by
using the Board's e-Appeal site (https://e-appeal.mspb.gov) in
accordance with Sec. 1201.14 of this chapter.
[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68
FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]
Sec. 1208.14 Representation by Special Counsel.
The Special Counsel may represent an appellant in a USERRA appeal
before the Board. A written statement (in any format) that the appellant
submitted a written request to the Secretary of Labor that the
appellant's complaint under 38 U.S.C. 4322(a) be referred to the Special
Counsel for litigation before the Board, and that the Special Counsel
has agreed to represent the appellant, will be accepted as the written
designation of representative required by 5 CFR 1201.31(a). The
designation of representative may be filed by electronic filing,
provided the requirements of Sec. 1201.14 of this chapter are
satisfied.
[69 FR 57631, Sept. 27, 2004]
Sec. 1208.15 Remedies.
(a) Order for compliance. If the Board determines that a Federal
agency employer or the Office of Personnel
Management has not complied with a provision or provisions of
chapter 43 of title 38, United States Code (other than a provision
relating to benefits under the Thrift Savings Plan for Federal
employees), the decision of the Board (either an initial decision of a
judge under 5 CFR 1201.111 or a final Board decision under 5 CFR
1201.117) will order the Federal agency employer or the Office of
Personnel Management, as applicable, to comply with such provision(s)
and to compensate the appellant for any loss of wages or benefits
suffered by the appellant because of such lack of compliance. Under 38
U.S.C. 4324(c)(3), any compensation received by the appellant pursuant
to the Board's order shall be in addition to any other right or benefit
provided for by chapter 43 of title 38, United States Code, and shall
not diminish any such right or benefit.
(b) Attorney fees and expenses. If the Board issues a decision
ordering compliance under paragraph (a) of this section, the Board has
discretion to order payment of reasonable attorney fees, expert witness
fees, and other litigation expenses under 38 U.S.C. 4324(c)(4). The
provisions of subpart H of part 1201 shall govern any proceeding for
attorney fees and expenses.
Sec. 1208.16 Appeals under another law, rule, or regulation.
Nothing in USERRA prevents an appellant who may appeal an agency
action to the Board under any other law, rule, or regulation from
raising a claim of a USERRA violation in that appeal. The Board will
treat such a claim as an affirmative defense that the agency action was
not in accordance with law (5 CFR 1201.56(b)(3)).
Subpart C_VEOA Appeals
Sec. 1208.21 VEOA exhaustion requirement.
Before an appellant may file a VEOA appeal with the Board, the
appellant must first file a complaint under 5 U.S.C. 3330a(a) with the
Secretary of Labor within 60 days after the date of the alleged
violation and allow the Secretary at least 60 days from the date the
complaint is filed to attempt to resolve the complaint.
Sec. 1208.22 Time of filing.
(a) Unless the Secretary of Labor has notified the appellant that
the Secretary's efforts have not resolved the VEOA complaint, a VEOA
appeal may not be filed with the Board before the 61st day after the
date on which the appellant filed the complaint under 5 U.S.C. 3330a(a)
with the Secretary.
(b) If the Secretary of Labor notifies the appellant that the
Secretary's efforts have not resolved the VEOA complaint and the
appellant elects to appeal to the Board under 5 U.S.C.
[[Page 84]]
3330a(d), the appellant must file the VEOA appeal with the Board within
15 days after the date of receipt of the Secretary's notice. A copy of
the Secretary's notice must be submitted with the appeal.
[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]
Sec. 1208.23 Content of appeal; request for hearing.
(a) Content. A VEOA appeal may be in any format, including letter
form, but must contain the following:
(1) The nine (9) items or types of information required in 5 CFR
1201.24(a)(1) through (a)(9);
(2) Evidence or argument that the appellant is a preference
eligible;
(3) A statement identifying the statute or regulation relating to
veterans' preference that was allegedly violated, an explanation of how
the provision was violated, and the date of the violation;
(4) Evidence that a complaint under 5 U.S.C. 3330a(a) was filed with
the Secretary of Labor, including the date the complaint was filed; and
(5)(i) Evidence that the Secretary has notified the appellant in
accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have
not resolved the complaint (a copy of the Secretary's notice satisfies
this requirement); or
(ii) Evidence that the appellant has provided written notice to the
Secretary of the appellant's intent to appeal to the Board, as required
by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to the
Secretary satisfies this requirement).
(b) Request for hearing. An appellant must submit any request for a
hearing with the VEOA appeal, or within any other time period the judge
sets. A hearing may be provided to the appellant once the Board's
jurisdiction over the appeal is established and it has been determined
that the appeal is timely. The judge may also order a hearing if
necessary to resolve issues of jurisdiction or timeliness. The appellant
has the burden of proof with respect to issues of jurisdiction and
timeliness (5 CFR 1201.56(a)(2)(i) and (ii)).
(c) Electronic filing. An appeal may be filed electronically by
using the Board's e-Appeal site (https://e-appeal.mspb.gov) in
accordance with Sec. 1201.14 of this chapter.
[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68
FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]
Sec. 1208.24 Election to terminate MSPB proceeding.
(a) Election to terminate. At any time beginning on the 121st day
after an appellant files a VEOA appeal with the Board, if a judicially
reviewable Board decision on the appeal has not been issued, the
appellant may elect to terminate the Board proceeding as provided under
5 U.S.C. 3330b and file a civil action with an appropriate United States
district court. Such election must be in writing, signed, filed with the
Board office where the appeal is being processed, and served on the
parties. The election is effective immediately on the date of receipt by
the Board office where the appeal is being processed. The election may
be filed by electronic filing, provided the requirements of Sec.
1201.14 of this chapter are satisfied.
(b) Termination order. Following receipt by the Board of an
appellant's written election to terminate the Board proceeding, a
termination order will be issued to document the termination of the
proceeding. The termination order will state that the proceeding was
terminated as of the date of receipt of the appellant's written
election. Such an order is neither an initial decision under 5 CFR
1201.111 nor a final Board decision and is not subject to a petition for
review in accordance with subpart C of part 1201, a petition for
enforcement in accordance with subpart F of part 1201, or a petition for
judicial review.
[65 FR 5412, Feb. 4, 2000, as amended at 68 FR 59865, Oct. 20, 2003; 69
FR 57631, Sept. 27, 2004]
Sec. 1208.25 Remedies.
(a) Order for compliance. If the Board determines that a Federal
agency has violated the appellant's VEOA rights, the decision of the
Board (either an initial decision of a judge under 5 CFR 1201.111 or a
final Board decision under 5 CFR 1201.117) will order the agency to
comply with the statute or regulation violated and to compensate the
appellant for any loss of wages or benefits
[[Page 85]]
suffered by the appellant because of the violation. If the Board
determines that the violation was willful, it will order the agency to
pay the appellant an amount equal to back pay as liquidated damages.
(b) Attorney fees and expenses. If the Board issues a decision
ordering compliance under paragraph (a) of this section, the Board will
order payment of reasonable attorney fees, expert witness fees, and
other litigation expenses. The provisions of subpart H of part 1201
shall govern any proceeding for attorney fees and expenses.
Sec. 1208.26 Appeals under another law, rule, or regulation.
(a) The VEOA provides that 5 U.S.C. 3330a shall not be construed to
prohibit a preference eligible from appealing directly to the Board from
any action that is appealable under any other law, rule, or regulation,
in lieu of administrative redress under VEOA (5 U.S.C. 3330a(e)(1)). An
appellant may not pursue redress for an alleged violation of veterans'
preference under VEOA at the same time he pursues redress for such
violation under any other law, rule, or regulation (5 U.S.C.
3330a(e)(2)).
(b) An appellant who elects to appeal to the Board under another
law, rule, or regulation must comply with the provisions of subparts B
and C of 5 CFR part 1201, including the time of filing requirement of 5
CFR 1201.22(b)(1).
PART 1209_PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL
ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING--Table of Contents
Subpart A_Jurisdiction and Definitions
Sec.
1209.1 Scope.
1209.2 Jurisdiction.
1209.3 Application of 5 CFR part 1201.
1209.4 Definitions.
Subpart B_Appeals
1209.5 Time of filing.
1209.6 Content of appeal; right to hearing.
1209.7 Burden and degree of proof.
Subpart C_Stay Requests
1209.8 Filing a request for a stay.
1209.9 Content of stay request and response.
1209.10 Hearing and order ruling on stay request.
1209.11 Duration of stay; interim compliance.
Subpart D_Reports on Applications for Transfers
1209.12 Filing of agency reports.
Subpart E_Referrals to the Special Counsel
1209.13 Referral of findings to the Special Counsel.
Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.
Source: 55 FR 28592, July 12, 1990, unless otherwise noted.